McSally Opposition To TRO 11/25/14

Case 4:14-cv-02489-CKJ Document 12 Filed 11/25/14 Page 1 of 18
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Brett W. Johnson (#021527)

Eric H. Spencer (#022707)
SNELL & WILMER L.L.P.
One Arizona Center
400 E. Van Buren St., Suite 1900
Phoenix, AZ 85004-2202
Telephone: 602.382.6000
Facsimile: 602.382.6070
E-Mail:
bwjohnson@swlaw.com
espencer@swlaw.com
Attorneys for Martha McSally and McSally for
Congress
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000
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Ron Barber for Congress; Lea GoodwineCesarec; Laura Alessandra Breckenridge;

Josh Adam Cohen,
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Plaintiffs,
v.
Ken Bennett, in his official capacity as
Secretary of State of the State of Arizona;
Pima County Board of Supervisors, a body
politic; Ally Miller, in her official capacity
as a member of the Pima County Board of
Supervisors; Ramn Valadez, in his official
capacity as a member of the Pima County
Board of Supervisors; Sharon Bronson, in
her official capacity as a member of the
Pima County Board of Supervisors; Ray
Carroll, in his official capacity as a member
of the Pima County Board of Supervisors;
Richard Elas, in his official capacity as a
member of the Pima County Board of
Supervisors; the Cochise County Board of
Supervisors, a body politic; Patrick Call, in
his official capacity as a member of the
Cochise County Board of Supervisors; Ann
English, in her official capacity as a
member of the Cochise County Board of
Supervisors; Richard Searle, in his official
capacity as a member of the Cochise
County Board of Supervisors,
Defendants.
Case No. CV-14-2489-TUC-CKJ
INTERVENORS MARTHA MCSALLY

AND MCSALLY FOR CONGRESS
RESPONSE IN OPPOSITION TO
APPLICATION FOR TEMPORARY
RESTRAINING ORDER AND
MOTION FOR PRELIMINARY
INJUNCTION
Before the Honorable Cindy K. Jorgenson
(ORAL ARGUMENT REQUESTED)
(EXPEDITED RULING REQUESTED)
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Having failed to hinder the orderly election process at the Boards of Supervisors
for Cochise and Pima Counties, Plaintiffs 1 are now attempting to hinder the statewide
election process by attempting to stop the Secretary of State from carrying out his non-
discretionary statutory duty. This latest misadventure should be denied as well for the
following reasons.
First, Plaintiffs lack standing, as there is neither a ripe federal question nor a
justiciable controversy. Second, Plaintiffs cannot demonstrate irreparable injury or that
Congressman Barber may win the election if the requested votes counted. If they could,
Plaintiffs have adequate redress under state law and injunctive relief is unnecessary. An
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injunction would harm Defendants and voters statewide, as it would preclude the canvass
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from proceeding on statutorily-mandated dates and delay the seating of other elected
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officials throughout the state, potentially disenfranchising voters. Finally, due to
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procedural missteps and reliance on inapt legal theories, the Plaintiffs also cannot
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establish a likelihood of success on the merits.
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I.
LEGAL STANDARD
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A preliminary injunction is a drastic remedy that should not be granted unless the
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movant, by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, 520
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U.S. 968, 972 (1997); Arizona Hosp. & Healthcare Assn v. Betlach, 865 F. Supp. 2d 984,
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988 (D. Ariz. 2012). Plaintiffs have the burden of proof. Envtl. Council of Sacramento v.
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Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). A party seeking a temporary
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restraining order must demonstrate a significant threat of irreparable injury. See
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Caribbean Marine Services Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). The
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standard for issuing a temporary restraining order is identical to the standard for issuing a
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preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F.
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Supp. 1320, 1323 (N.D. Cal. 1995). The proper legal standard for preliminary injunctive
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relief requires a party to demonstrate that he is likely to succeed on the merits, that he is
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Previous efforts have been conducted under the nom de guerre of the Barber for
Congress campaign alone.
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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Because a preliminary injunction is an
extraordinary remedy, a Court should only issue one upon a clear showing that the
[moving party] is entitled to such relief. Id., 555 U.S. at 22. The traditional function of a
preliminary injunction is to preserve the status quo pending a ruling on the merits. Chalk
v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir. 1988).
There is heightened scrutiny where, like here, the movant seeks to alter the status
quo, i.e., stop the process and count properly rejected ballots. Dahl v. HEM Pharms.
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Corp., 7 F.3d 1399, 1403 (9th Cir. 1993). Courts generally refrain from intruding into
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election processes. Burdick v. Takushi, 846 F.2d 587, 589 (9th Cir. 1988) (State election
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codes are the product of careful consideration at the local level about how to ensure fair
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and orderly elections. . . . Federal courts should refrain from deciding the constitutionality
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of state election laws when reasonable alternatives to such adjudication are available.).
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As discussed herein, because Plaintiffs are not facing immediate, substantial, and
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irreparable harm, not to mention their claims are legally flawed, the Court should allow
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the State process to proceed.
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II.
LIKELIHOOD OF SUCCESS ON THE MERITS.
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Filed contemporaneously with this Response, Intervenors have filed a Motion to
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Dismiss Plaintiffs Verified Complaint for lack of jurisdiction and failure to state a claim,
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pursuant to Rule 12(b), Fed. R. Civ. P., Intervenors incorporate by reference the Motion
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to Dismiss in its entirety.
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A.
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First, Plaintiffs do not have standing to represent over 133 individual voters in this
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matter. See Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 39 (1976) (applying
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standing analysis to test the allegations of each of the individual respondents and the
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respondent organizations . . . for sufficiency). Plaintiffs bear the burden of establishing
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standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Plaintiffs Complaint is Procedurally Flawed.
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Plaintiffs complaint is also barred by laches and estoppel. Harris v. Purcell, 193
Ariz. 409, 412-13, 973 P.2d 1166, 1169-70 (1998) ([T]o wait until the last moment to
challenge an election matter places the court in a position of having to steamroll through
the delicate legal issues in order to meet [statutory deadlines].) (internal quotes and
brackets omitted). To the extent that Plaintiffs disagree with the process of determining
whether to count a ballot, they needed to bring such action before the election. Tilson v.
Mofford, 153 Ariz. 468, 470-71 (1987)(procedural violations in the elective process
itself must be reviewed by the court prior to the actual election). And, to the extent
Plaintiffs wanted the Boards of Supervisors to delay to count missing votes, they
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needed to seek injunctive relief before the canvass was complete. A.R.S. 16-642(A),
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(C).
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To the extent Plaintiffs attempt to challenge the results, however, that matter is not
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ripe until after the Secretary of State certifies the election and conducts the statewide
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canvass on December 1, 2014. See A.R.S. 16-672(A) (providing grounds for election
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contests). No court has jurisdiction to hear any election contest that fails to strictly
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comply with statutory timing provisions. Hunsaker v. Deal, 135 Ariz. 616, 617, 663 P.2d
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608, 609 (Ct. App. 1983)(Time elements in election statutes are jurisdictional and the
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time requirements for filing an election contest will be strictly construed.) (citation
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omitted).
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Finally, even if the Court did have jurisdiction, it should abstain from exercising
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such jurisdiction out of deference to the State action that is not complete. Younger v.
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Harris, 401 U.S. 37 (1971); see also Burford v. Sun Oil Co., 319 U.S. 315, 334 (1943).
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Even if Plaintiffs are correct, any alleged human errors were not pervasive, thus
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Plaintiffs must exhaust their state remedies before asserting claims to the federal court.
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Gold v. Feinberg, 101 F.3d 796, 802 (2d Cir. 1996); see also Vallejo v. City of Tucson,
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2009 WL 1835115 at *1 n.1 (D. Ariz., June 26, 2009)); Krieger v. City of Peoria, 2014
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WL 4187500 at *3 (D. Ariz., Aug. 22, 2014); Bennett v. Yoshina, 140 F.3d 1218 (9th Cir.
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1998).
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B.
Only in extraordinary circumstances will a challenge to a state [or local] election
rise to the level of a constitutional deprivation. Curry v. Baker, 802 F. 2d 1302, 1314
(11th Cir. 1986). As relevant here, the Equal Protection Clause imposes two narrow
constraints on states broad power to regulate elections. First, the State may not,
byarbitrary and disparate treatment, value one persons vote over that of another.
Bush v. Gore, 531 U.S. 98, 104-05 (2000) (emphasis added). A particular plaintiff cannot
demonstrate disparate treatment unless it can show that it is similarly situated to other
individuals whose votes were counted. See, e.g., Northeast Ohio Coalition for the
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Homeless v. Husted, 696 F.3d 580, 598 (6th Cir. 2012). Even disparate treatment of
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similarly situated parties is not arbitrary where local entities, in the exercise of their
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expertise, . . . develop different systems for implementing elections. See Bush, 531 U.S.
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at 109 (emphasizing that arbitrariness arose from a statewide remedy ordered by a state
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court); see also Husted, 696 F.3d at 598. Indeed, this Court has previously held that even
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disparate treatment within a jurisdiction does not rise to the level of an equal protection
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violation where the disparity is not intentional, but merely a garden variety election
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irregularity. See Vallejo, 2009 WL 1835115, *2-3.
There are No Actionable Equal Protection and Due Process Violations.
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Second, election procedures cannot unduly burden the right to vote when the
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character and magnitude of the asserted injury is weighed against the precise interests
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put forward by the State as justifications for the burden imposed by its rule. Burdick, 504
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U.S. at 434. But very few election regulations can violate this flexible standard. See
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Dudum v. Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011).To begin with, strict scrutiny applies
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only [w]hen the burdens on voting imposed by the government are severe, and the
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Ninth Circuit has repeatedly upheld as not severe restrictions that are generally
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applicable, even-handed, politically neutral, and protect the reliability and integrity of
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the election process. Id. (quotation marks omitted). Furthermore, [w]here non-severe,
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[l]esser burdens on voting are at stake, less exacting review [applies], and a States
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important regulatory interests will usually be enough to justify reasonable,

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nondiscriminatory restrictions. Id. 2 Restrictions that are generally applicable, even-
handed, politically neutral, and which protect the reliability and integrity of the election
process are therefore constitutional. Rubin v. City of Santa Monica, 308 F.3d 1008, 1014
(9th Cir. 2002); see also Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir. 2008) (voting
regulations are rarely subject to strict scrutiny).
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C.
Plaintiffs Factual Assertions Do Not State Equal Protection or Due

Process Claims Upon Which Relief Can Be Granted.
Plaintiffs raise multiple argumentsprimarily on behalf of non-parties to this
actionthat appear, if true, to raise unintentional irregularities in the election process.
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For example, Plaintiffs apparently object to provisional ballots that were allegedly not
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counted related to (1) voters who moved within the respective counties, (2) signatures
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that did not match, (3) unsigned early or provisional ballots, (4) alleged failure by poll
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workers to send specific voters to the proper precincts, and (5) alleged misleading or
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erroneous statements by elections officials. These alleged issues do not rise to the level of
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a constitutional violation either for equal protection or due process purposes Gold v.
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Feinberg, 101 F.3d 796, 800 (2d Cir. 1996) (equal protection); Powell v. Power, 436 F.2d
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84, 88 (2d Cir. 1970)(due process).
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In reviewing a right to vote equal protection challenge, a distinction must be
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made between (1) state laws and patterns of state action that systematically deny
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equality in the vote, and (2) episodic events that despite non-discriminatory laws, may
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result in the dilution of an individuals vote. Gamza v. Aguirre, 619 F.2d 449, 453 (5th
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Cir. 1980). Isolated events adversely affecting individuals are presumed not to violate the
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equal protection clause. Id.; see also Powell, 436 F.2d at 88. Accordingly, assuming an
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In the third count of their complaint, Plaintiffs also allege violations of the Due Process
Clause. This claim appears to be redundant with their equal protection claims, in that it
focuses exclusively on alleged disparate treatment. (See Compl., Doc. 1, 91-92.)
Insofar as Plaintiffs purport to raise a due process claim that is independent of their equal
protection claims, they face an even greater burden. As this Court has recognized, a State
does not violate the due process clause unless its action was so willfully malicious as to
interfere with the fairness of the election; the Plaintiffs must demonstrate a pervasive
error that undermines the integrity of the vote, not mere garden variety election
irregularities. See Vallejo, 2009 WL 1835115, *2.
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unlawful administration by state officers (there was none here) of a non-discriminatory
state law (the provisional and early ballot process) resulting in its unequal application to
those who are entitled to be treated alike, there is no denial of equal protection unless . . .
intentional or purposeful discrimination exists. Id. Like other garden variety election
disputes, the alleged actions taken by Defendants and frontline poll workers therefore do
not violate federal rights. Bennett v. Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998)
(citations omitted).
In the face of the generally applicable, even-handed, politically neutral process
employed by Defendants, this Court should defer to the States and counties regulatory
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interests. Dudum v. Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011) (holding a restricted
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instant runoff voting (IRV) system did not violate the Fourteenth Amendment). The fair
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and reasoned decision of elected officials as to the correct remedial procedures to employ
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is within their exclusive province and should not be overturned absent intentional and
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malicious intent to discriminate. Id. at 1115.

1.
Ron Barber for Congress Equal Protection Rights Have Not
Been Violated.
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With regard to the Ron Barber for Congress campaign, it is unclear if it asserts that
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Congressman Barber has a property interest in his status as a candidate for purposes of its
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procedural due process claims. To the extent it does, no right exists. [P]ublic offices are
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mere agencies or trusts, and not property as such and the nature of the relation of a
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public officer to the public is inconsistent with either a property or a contract right.
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Taylor v. Beckham, 178 U.S. 548, 577 (1900). Thus, even an unlawful denial by state
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action of a right to state political office is not a denial of a right of property or liberty
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secured by the due process clause. Snowden v. Hughes, 321 U.S. 1, 7 (1944). Any claims
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premised upon a property interest in an elected office fail as a matter of law.
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2.
Voters Who Moved Within Pima County And Nonetheless Had

Their Provisional Ballot Rejected.
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Plaintiffs do not appear to be raising any federal constitutional claims with respect
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to this allegation. (See TRO App., Doc. 2, at 5-6.) For good reason: they at most allege
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three isolated errors of state law, all of which are insufficient to support any equal
protection claim. See Vallejo, 2009 WL 1835115, at *2-3.
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3.
Voters Whose Ballots Were Rejected Due to Signature

Mismatch.
Plaintiffs raise several federal constitutional claims with respect to this allegation.
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(See TRO App. at 7-9.) None demonstrates any likelihood of success on the merits. First,
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Plaintiffs object to the lack of state-wide or district-wide standards for determining
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mismatches. But Plaintiffs cannot demonstrate disparate treatment, because they have
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no basis whatsoever for their speculation that it is entirely possible that signatures found
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to match in Cochise County would be considered mismatches in Pima County. Compare
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Bush, 531 U.S. at 106 (The want of [uniform] rules here has led to unequal evaluation of
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ballots in various respects, and [t]he record provides some examples.). Moreover, any
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disparity is not arbitrary, because Bush v. Gore does not prevent local entities, such as
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Cochise and Pima Counties, from develop[ing] different systems for implementing
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elections in the exercise of their expertise. Id. at 109.
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Second, Plaintiffs object to the cure process for mismatches. Again, Plaintiffs
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have not demonstrated disparate treatment. Individuals who sought to cure a mismatch
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by Election Day (in Cochise County), or shortly thereafter (by November 9, 2014, in Pima
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County), are not similarly situated to individuals who now seek to cure the mismatch
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long after election day and November 9, 2014. See Husted, 696 F.3d at 598. Nor have any
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Plaintiffs been identified who were denied the ability to cure in Cochise County before
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November 9, 2014, but who would have been allowed the ability to cure in Pima County
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by November 9, 2014. And regardless, as discussed, the equal protection clause does not
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bar Cochise and Pima Counties from adopting marginally different processes for curing
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signature mismatches.
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Third, Plaintiffs object that the signature-match process unduly burdens the right to
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vote. But the signature-matching requirement is obviously a not severe, reasonable,
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nondiscriminatory restriction[]. See Dudum, 640 F.3d at 1106. Finally, Plaintiffs claim
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that the rejection of their mismatched ballots violates due process. But they have not
come close to alleging a willfully malicious and pervasive error that undermines the
fairness and integrity of the election. See Vallejo, 2009 WL 1835115, *2.
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4.
Unsigned Early Ballot Affidavits.
Plaintiffs raise two federal constitutional claims with respect to this allegation.
(See TRO App., Doc. 2, at 9-10.) Neither demonstrates any likelihood of success on the
merits. First, Plaintiffs claim that Cochise and Pima Counties notified some voters of their
need to cure unsigned early ballots for some period prior to Election Day. Again, though,
Plaintiffs have not demonstrated disparate treatment: They have not shown that their
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unsigned early ballots were received as early as the ballots of voters who were notified
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that their signatures were missing, and they cannot be similarly situated if their ballots
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were received later. Likewise, they have not demonstrated that they were treated
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differently in one county than they would have been treated in another county and that
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would not matter regardless.
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Second, Plaintiffs claim that there is no rational basis for permitting ballots to be
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cured post-election for a signature mismatch, but not where a ballot is unsigned. But there
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is an obvious rational basis: an unsigned ballot is unquestionably defective solely due to
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the fault of the voter, whereas a ballot with a signature that has been deemed not to match
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might well be valid and the error might be on the part of the State. Accordingly, it is
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entirely reasonable to provide a limited post-election cure period for the latter, but not for
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the former.
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5.
Unsigned Provisional Ballot Forms.
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Plaintiffs argue that the failure to count unsigned provisional ballots violates the
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Equal Protection and Due Process Clauses because the poll worker could have warned the
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voter about the missing signature. (See TRO App., Doc. 2, at 10-11.) But the federal
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constitution does not require the counties to inform voters of errors that they have made
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for which the counties themselves are not in any way responsible. See Dudum, 640 F.3d
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at 1106; Vallejo, 2009 WL 1835115, *2.

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Failure to Direct Voters Who Had Moved To The Proper

Precinct.
Plaintiffs assert that, by allegedly failing to direct voters who had moved to the
proper precinct, in purported violation of a state-law duty to do so, the counties violated
the federal equation protection clause as interpreted by the Sixth Circuit in Husted. (See
TRO App., Doc. 2, at 11-12.) As a threshold matter, Husted is distinguishable on its facts.
The case involved systemic disqualification of thousands of wrong-precinct provisional
ballots. See Husted, 696 F.3d at 593. Here, by contrast, Plaintiffs have merely identified
31 ballots allegedly falling into this category. (See TRO App., Doc. 2, at 4.) That is not
the stuff of a federal constitutional case.
In any event, Plaintiffs equal protection theory makes no sense under the Burdick
balancing test that Husted purported to apply. Even Plaintiffs do not argue that the Equal
Protection Clause imposes an affirmative obligation to inform voters that they are in the
wrong precinct absent a state-law duty to do so. (See TRO App., Doc. 2, at 13-14; see also
infra 7.) But, for purposes of Burdick balancing, the right-precinct requirement is no
more severe, and no less reasonable, simply because the counties purportedly have
voluntarily chosen to inform voters of the correct precinct, but then failed to do so in a
few isolated cases. See Dudum, 640 F.3d at 1106.
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Misleading or Erroneous Statements by Election Officials

Regarding Voting in Proper Precinct.
Plaintiffs likewise assert that disqualifying voters who relied on misleading or

erroneous statements by election officials regarding the correct precinct violates the equal
protection and due process clauses. (See TRO App. at 12-13.) This claim fails for the
same reasons as the prior claim: (1) the 11 instances of isolated error alleged by Plaintiffs
do not rise to the level of a federal constitutional violation; and (2) the right-precinct
requirement does not unduly burden the right to vote even where county officials fail to
assist a voter in curing their non-compliance with that requirement.
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8.
Plaintiffs do not appear to be raising any federal constitutional claims with respect
to this allegation. (See TRO App., Doc. 2, at 13-14.) For good reason: as discussed, the
State does not have any affirmative obligation under the federal constitution to inform
voters of errors for which the counties are not in any way responsible.
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Arizona Complied with Applicable Laws in Administration of the

Election.
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Plaintiffs Claims under the Help America Vote Act (HAVA) are
Without Merit.
HAVAs requirement that provisional ballots be provided does not impose of

States a requirement to count provisional ballots in any specific manner. Rather, HAVA
requires States to provide voters who are challenged or do not appear on the rolls at the
polling place the ability to vote a provisional ballot on election day. See 52 U.S.C.
21082. Regarding whether a provisional ballot should be counted as a valid ballot,
however, as recognized by the Plaintiffs, HAVA conspicuously leaves that determination
to the States. Sandusky Co. Democratic Party v. Blackwell, 387 F.3d 565, 577 (6th Cir.
2004). Specifically, HAVA provides that provisional votes shall be counted [i]f the
appropriate State or local election official . . . determines that the individual is eligible
under State law, the individuals provisional ballot shall be counted as a vote in that
election in accordance with State law. 52 U.S.C. 21082(a)(4) (emphasis added). The
conditional if plainly rests on a determination by a State official that a vote has been
cast in accordance with State law. Despite Plaintiffs insistence otherwise, HAVA, in
plain language and application, does not disturb Arizona state law concerning the
determination of validity and counting of provisional ballots.3
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The Sixth Circuit, in an examination of HAVAs legislative history, has also concluded
that the statutes history fails to provide any indication that the federal law was intended
to require that ballots cast in the wrong precinct be counted. Sandusky at 578 (quoting
Senator Bond, ballots will be counted according to state law, and Senator Dodd
[w]hether a provisional ballot is counted or not depends solely on State law; nothing in
this compromise usurps the state or local election officials sole authority to make the
final determination with respect to . . . whether that vote is duly counted. 148 Cong. Rec.
at S10491, 10510, & 10504).
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2.
Arizona Law Provides Discretion to Election Law Officials in

Administering the Election and Disqualifying Votes, all in
Compliance with HAVA
Arizona law does not empower courts to second-guess election officials judgment
in disqualifying ballots from inclusion in the official canvass. Election challenges are
purely statutory, meaning that courts have no jurisdiction to grant remedies outside the
relevant statutory framework. See, e.g., Grounds v. Lawe, 67 Ariz. 176, 186, 193 P.2d 447,
453 (1948) ([E]lection contests are not governed by the general rules of chancery
practice but rather are considered to be purely statutory.). In other words, courts are not
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at liberty to construe the election code to provide for legal remedies state lawmakers did
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not enact. Cf. McNamara v. Citizens Protecting Tax Payers, No. 1 CA-CV 13-0551, 2014
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WL 5486632, at *1 (Ariz. App. Oct. 30, 2014) (holding courts could not imply a private
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cause of action to enforce provisions of state campaign finance law). This Court, therefore,
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cannot grant Plaintiffs the relief they seek because it is not provided for in Arizona statute
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and would require the court to substitute its judgment for that of election officials.
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In reality, Arizona law only provides for an election contest challenge to the
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validity of election results. See A.R.S. 16-672(A) (providing grounds for election
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contests); Donaghey v. Attorney Gen., 120 Ariz. 93, 95, 584 P.2d 557, 559 (1978)
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(holding that a partys failure to bring a legal challenge to the conduct of an election as an
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election contest precluded any other civil relief). A contestant may bring one by filing a
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statement of contest with the appropriate state court within five days after the Secretary of
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State certifies the final canvass pursuant to A.R.S. 16-648(A). See A.R.S. 16-673(A).
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No court has jurisdiction to hear an election contest that fails to strictly comply with
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statutory timing provisions. Hunsaker v. Deal, 135 Ariz. 616, 617, 663 P.2d 608, 609 (Ct.
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App. 1983) (Time elements in election statutes are jurisdictional and the time
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requirements for filing an election contest will be strictly construed.) (citation omitted).
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Courts in election contests share concurrent authority with election officials to
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disqualify illegal votes, see A.R.S. 16-672(A)(4), but only the counties may add legal
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ones to the canvass. It would contravene the Legislatures intent for the court to intervene
in that process without statutory basis for doing so.
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As Plaintiffs claims lack merit for the reasons stated herein and in Intervenors
Motion to Dismiss, Plaintiffs Application should be denied.
III.
IRREPARABLE HARM
When a party seeks a preliminary injunction on the basis of a potential
constitutional violation, the likelihood of success on the merits often will be the
determinative factor[,] . . . but [the court will] nevertheless address the remaining three
factors of the preliminary injunction test. Obama for Am. v. Husted, 697 F.3d 423, 436
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(6th Cir. 2012). But, no constitutional deprivation will occur here by denial of injunctive
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relief. Although the right to vote is a fundamental right, see, e.g., Ohio State Conference
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of N.A.A.C.P. v. Husted, 768 F.3d 524, 537 (6th Cir. 2014), no restriction on the right to
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vote has been alleged. Restrictions on the right to vote, such as those alleged in the cases
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cited by Plaintiffs, are those which prevent certain voters from ever voting in the first
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place. See, e.g, League of Women Voters of N. Carolina v. N. Carolina, 769 F.3d 224, 247
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(4th Cir. 2014) (finding that a House Bill which restricted the electoral mechanisms most
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commonly used by African American voters should be enjoined prior to the election,
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because once the election occurs, there can be no do-over and no redress.) (emphasis
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added), Obama for Am., 697 F.3d at 436 (finding a burden on non-military Ohio voters
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ability to cast ballots would cause irreparable harm if not enjoined prior to the election)
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(emphasis added).
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Simply, Plaintiffs have cited no case precedent to reflect that a party suffers
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irreparable harm between the canvassing by the Boards of Supervisors and the
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certification by the Secretary of State. Specifically, the election cases cited by Plaintiffs in
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support of irreparable harm all deal with either pre-election challenges to applicable
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election procedures (Common Cause v. Bolger, 512 F. Supp. 26, 31-32 (D.D.C.
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1980)(pre-election objection to the congressional franking statute); League of Women
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Voters of N. Carolina, 769 F.3d 224 (pre-election objection to voter identification laws);
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Obama for Am., 697 F.3d 423 (pre-election challenge to early voting procedures); Miller
v. Moore, 169 F.3d 1119, 1123 (8th Cir. 1999)(pre-election challenge to term limits)) or
proper post-canvassing contest of elections under applicable statute (Chenworth v.
Earhart, 14 Ariz. 278, 127 P. 748, 751 (1912)).
Plaintiffs do not dispute that the voters listed in their Application have exercised
their rights to vote. Plaintiffs argue instead that these voters lack the ability to vote
because their votes have been rejected under State law. However, rejecting ballots that
violate State law does not implicate the fundamental right to vote: [t]he States possess a
broad power to prescribe the Times, Places and Manner of holding Elections for
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Senators and Representatives, Art. I, 4, cl. 1. . . . Washington State Grange v.
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Washington State Republican Party, 552 U.S. 442, 451 (2008) (citing Clingman v.
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Beaver, 544 U.S. 581, 586 (2005)). States power over the time, place and manner of
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elections includes establishing mandatory voting precincts and requiring proper
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signatures. See Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 568 (6th
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Cir. 2004); see also A.R.S. 16-552(B).
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However, even if voters were deprived of some constitutional right, [t]he decision
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to enjoin an impending election is so serious that the Supreme Court has allowed elections
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to go forward even in the face of an undisputed constitutional violation. Sw. Voter
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Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003). This is likely
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why Plaintiffs failed to cite any case authority for bringing a lawsuit during the
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intermission between Board of Supervisor action and the Secretary of States certification.
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Moreover, irreparable harm to Ms. McSally and all other state and local candidates
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will result from the entering of a restraining order and preliminary injunction, creating an
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unwarranted ripple effect through all other races. See, e.g., Bush v. Gore, 531 U.S. 1046,
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1047 (2000) (Scalia, J., concurring) (The counting of votes that are of questionable
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legality does in my view threaten irreparable harm to petitioner Bush, and to the country,
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by casting a cloud upon what he claims to be the legitimacy of his election.). As a result,
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voters, who cast their ballots in reliance on the law and instructions, rather than verbal
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statements, would have their vote diluted. Roe v. Alabama, 43 F.3d 574(11th Cir. 1995)
(validating post-election ballots previously considered invalid diluted votes).
Finally, not only will there be no irreparable harm to these voters, Plaintiffs claims
are ultimately futile. As discussed above, the Court should not set aside votes unless there
is an explicit statutory remedy for non-compliance with election procedures or a violation
of election procedure that reaches enough votes to call the outcome of the election into
doubt. See Miller, 179 Ariz. at 180, 877 P.2d at 279 (holding large-scale hand delivery of
absentee ballots, in violation of statute, to electors who otherwise may not have voted
required the election to be set aside); Reyes v. Cuming, 191 Ariz. 91, 93-94, 952 P.2d 329,
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331-32 (Ct. App. 1997) (holding county recorders failure to compare signatures on
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outside of absentee ballots with registration lists required that the election be set aside).
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Neither is the case here. Even if every single one of Plaintiffs 133 contested ballots were
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counted, the outcome of the election, with Ms. McSally leading by 161 votes, would not
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change and the Secretary of State would still be mandated to issue a certificate of election
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pending an automatic recount. A.R.S. 16-650.
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As Plaintiffs have failed to show irreparable harm, their Application should be
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denied.
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IV.
BALANCE OF THE HARMS
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The harm resulting from the granting a restraining order and preliminary
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injunction is to the Defendants, the respective county boards of supervisors, Ms. McSally
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and the other State and local candidates on the slate who prevailed on Election Day. The
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Secretary of State and other election officials will shoulder the administrative burden of
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prematurely recounting and re-verifying ballots. Meanwhile, Ms. McSally and the other
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candidates are harmed by the delay of the canvass and certification of election.
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Additionally, the legitimacy of the states election procedures is threatened by this
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premature action. See, e.g., Bush, 531 U.S. at 1047 (Scalia, J., concurring) (noting that
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counting votes of questionable legality irreparably harms elected candidate by casting
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doubt on legitimacy of election).

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Barber for Congress, meanwhile, attempts to instigate here a premature and
inapposite election contest before exhausting remedies administratively and in state
courts as provided by law. There would be no irreparable harm in denying that attempted
end-around. The potential for irreparable harm to Ms. McSally and other Arizona
candidates clearly dominates. Therefore, Plaintiffs Application should be denied.
V.
PUBLIC INTEREST
No voters have been wrongfully disenfranchised by the counties rejection of
ballots not conforming to state law and election procedures. Neither has the right to vote
been restricted. Other federal courts have found that where, as here, it may ultimately be
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concluded . . . that the invalidation of the original ballots . . . may . . . be upheld, a
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preliminary injunction is not in the public interest. United States v. W. Virginia, No.
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CIV.A. 2:14-27456, 2014 WL 6471493, at *4 (S.D.W. Va. Nov. 18, 2014) (noting that
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[t]he balance of equities tips in favor of first fully developing the facts before compelling
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action that may prove to be improvident.). Ron Barber for Congress asks this Court to
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supersede procedure and halt the statutory election process to reconsider a number of
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votes that, even if they were improperly rejected, have no effect on the outcome of the
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election. Even taking into account Plaintiffs arguments, a recount will proceed and
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Congressman Barber can attempt to raise his arguments in a contest according to Arizona
19
law. No public interest supports deviation from Arizona law. As such, the public interest
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requires denial of Plaintiffs Application.
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VI.
CONCLUSION
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For the foregoing reasons, Intervenors Martha McSally and McSally for Congress
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respectfully request that Plaintiffs Application and Motion be denied. Arizonas electoral
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process should be allowed to proceed in accordance with Arizona law.
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DATED this 25th day of November, 2014.
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SNELL & WILMER L.L.P.
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By:
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s/ Brett W. Johnson
Brett W. Johnson
Eric H. Spencer
One Arizona Center
400 E. Van Buren Street, Suite 1900
Attorneys for Martha McSally and
McSally for Congress
CERTIFICATE OF SERVICE
2
3
I hereby certify that on the 25th day of November, 2014, I electronically transmitted
the attached document to the Clerks Office using the CM/ECF system for filing and
transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
Daniel Clayton Barr

Perkins Coie LLP
P.O. Box 400
Attorney for Plaintiffs
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s/ Tracy Hobbs
20517800
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McSally Opposition To TRO 11/25/14

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Case 4:14-cv-02489-CKJ Document 12 Filed 11/25/14 Page 1 of 18

Brett W. Johnson (#021527)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Snell & Wilmer

Ron Barber for Congress; Lea GoodwineCesarec; Laura Alessandra Breckenridge;

Case No. CV-14-2489-TUC-CKJ

INTERVENORS MARTHA MCSALLY

Before the Honorable Cindy K. Jorgenson

(ORAL ARGUMENT REQUESTED)

(EXPEDITED RULING REQUESTED)

Snell & Wilmer

Case 4:14-cv-02489-CKJ Document 12 Filed 11/25/14 Page 2 of 18

justiciable controversy. Second, Plaintiffs cannot demonstrate irreparable injury or that

officials throughout the state, potentially disenfranchising voters. Finally, due to

establish a likelihood of success on the merits.

restraining order must demonstrate a significant threat of irreparable injury. See

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Case 4:14-cv-02489-CKJ Document 12 Filed 11/25/14 Page 3 of 18

the State process to proceed.

LIKELIHOOD OF SUCCESS ON THE MERITS.

Filed contemporaneously with this Response, Intervenors have filed a Motion to

to Dismiss in its entirety.

respondent organizations . . . for sufficiency). Plaintiffs bear the burden of establishing

standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

Plaintiffs Complaint is Procedurally Flawed.

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Case 4:14-cv-02489-CKJ Document 12 Filed 11/25/14 Page 5 of 18

Only in extraordinary circumstances will a challenge to a state [or local] election

irregularity. See Vallejo, 2009 WL 1835115, *2-3.

There are No Actionable Equal Protection and Due Process Violations.

important regulatory interests will usually be enough to justify reasonable,

Case 4:14-cv-02489-CKJ Document 12 Filed 11/25/14 Page 6 of 18

nondiscriminatory restrictions. Id. 2 Restrictions that are generally applicable, even-

regulations are rarely subject to strict scrutiny).

Snell & Wilmer

Plaintiffs Factual Assertions Do Not State Equal Protection or Due

Plaintiffs raise multiple argumentsprimarily on behalf of non-parties to this

actionthat appear, if true, to raise unintentional irregularities in the election process.

84, 88 (2d Cir. 1970)(due process).

In reviewing a right to vote equal protection challenge, a distinction must be

Snell & Wilmer

Case 4:14-cv-02489-CKJ Document 12 Filed 11/25/14 Page 7 of 18

unlawful administration by state officers (there was none here) of a non-discriminatory

In the face of the generally applicable, even-handed, politically neutral process

malicious intent to discriminate. Id. at 1115.

premised upon a property interest in an elected office fail as a matter of law.

Voters Who Moved Within Pima County And Nonetheless Had

Case 4:14-cv-02489-CKJ Document 12 Filed 11/25/14 Page 8 of 18

protection claim. See Vallejo, 2009 WL 1835115, at *2-3.

Voters Whose Ballots Were Rejected Due to Signature

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Case 4:14-cv-02489-CKJ Document 12 Filed 11/25/14 Page 9 of 18

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Unsigned Early Ballot Affidavits.

would not matter regardless.

is an obvious rational basis: an unsigned ballot is unquestionably defective solely due to

Unsigned Provisional Ballot Forms.

at 1106; Vallejo, 2009 WL 1835115, *2.

Case 4:14-cv-02489-CKJ Document 12 Filed 11/25/14 Page 10 of 18

Snell & Wilmer

Failure to Direct Voters Who Had Moved To The Proper