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Krieger v. City of Peoria

United States District Court, D. Arizona

August 22, 2014

Ken Krieger, et al. Plaintiffs,
City of Peoria, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

Plaintiffs have filed a motion for a temporary restraining order ("TRO") and a preliminary injunction. Doc. 12. Defendants have filed a joint response (Doc. 27) and Plaintiffs have replied (Doc. 32). The Court heard oral argument on August 22, 2014. For the reasons that follow, the Court will grant the motion and enter a TRO.

I. Background.

Plaintiffs are Dr. Ken Krieger and "Dr. Ken Krieger for Peoria City Council, " a political committee. There are several defendants: the City of Peoria; Peoria Mayor Bob Barrett, in his official capacity; Peoria City Council members Tony Rivero, Carlo Leone, Ron Aames, Jon Edwards, Ben Toma, and Bill Patena, in their official capacities; Peoria City Clerk Rhonda Geriminsky, in her official capacity; Maricopa County; Maricopa County Supervisors Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and Marie Lopez, in their official capacities; Clerk of the Maricopa County Board of Supervisors Fran McCarroll, in her official capacity; Maricopa County Recorder Helen Purcell, in her official capacity; Maricopa County Elections Director Karen Osborne, in her official capacity; the Election and Tally Boards for the Mesquite District in the City of Peoria; the State of Arizona; Ben Toma, in his individual capacity; and Bridget Binsbacher.

This case concerns an election for a seat on the Peoria City Council representing Peoria's Mesquite District. The Mesquite District seat became vacant when its previous occupant resigned to run for Mayor of Peoria. Doc. 27 at 3. There are three candidates - Plaintiff Krieger, Defendant Toma, and Defendant Binsbacher. Toma is currently serving as the Mesquite District's interim council member. Id. at 4.

The Mesquite District primary election is scheduled to be held on August 26, 2014, in conjunction with state and federal elections. Early voting has already commenced. If a candidate receives at least "50% plus one" of the votes in the primary, he or she will immediately take office. Id. If not, a run-off would occur in November, with the winner taking office shortly thereafter. Id. There is no dispute that all three candidates properly qualified for the ballot.

Early voting ballots were mailed to registered voters in the Mesquite District on July 31, 2014 (the "First ballot"). Doc. 12 at 2. The following day, it was discovered that Krieger's name had been omitted from the ballot. Id. In an effort to correct the error, Defendants Purcell, Osborne, and Geriminsky decided to send replacement ballots, which were mailed on August 5, 2014 (the "Second ballot"). Id. Surprisingly, Krieger's name was omitted again. The parties agree that the vendor responsible for printing the ballots - not Defendants - is responsible for these errors.

The Peoria City Council held an emergency meeting on August 7, 2014, to find a solution. Id. at 3. The Council decided by a 3-2 vote, with Toma abstaining, that a new ballot would be mailed to all registered voters in the Mesquite District (the "Third ballot"), that remote voting stations would be set up to accept Third ballots or allow voters to cast Third ballots, and that votes cast for the Mesquite District race on the First or Second ballots would be counted unless the voter also submitted a Third ballot. Id. The Third ballots were mailed to registered voters on August 9, 2014, along with this notice:

The enclosed replacement ballot includes a list of all candidates for the City of Peoria Special Primary Election for the Mesquite District Council seat only. If you have previously received a ballot, you may use that ballot to vote for all offices except the Mesquite District Council seat. Please use the enclosed ballot to vote for the Mesquite District council seat. If you have already voted in the Mesquite District Council Election and do not return this ballot, your prior vote will be counted. If you have not already voted an early ballot, you may vote a full ballot (State, County, and City items) at your designated polling place on Election Day. Replacement Voting Centers will be open through August 26th to vote only for the Mesquite District Council seat.

Doc. 27-2 at 8.

Defendants state that if voters return either the First or Second ballots, the last one received will be counted. Doc. 27 at 5. If a voter returns a Third ballot by mail, casts a Third ballot at a remote voting location, or casts a full ballot at the polls on Election Day, that vote will be counted for the Mesquite District election rather than any vote indicated on a previously received ballot. Id.

Following the Council's decision, Plaintiffs filed this action asserting claims under 42 U.S.C. ยง 1983 for denial of equal protection and due process under the Fourteenth Amendment to the United States Constitution, and denial of freedom to associate under the First Amendment. They also assert claims for violation of Arizona's early voting and ballot preparation statutes and violation of Peoria's ballot preparation law. Doc. 15. Plaintiffs ask the Court to enjoin the Mesquite District primary election and order that a special election be held.

II. Standing.

To establish standing, a plaintiff generally must show three elements: (1) the plaintiff has suffered an "injury in fact, " (2) a causal connection exists between the injury and the conduct complained of, and (3) there is a likelihood the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Defendants dispute only the first element, arguing that Plaintiffs have not suffered injury in fact. The Court disagrees. There can be little doubt that Plaintiff Krieger, a candidate, will be injured by an election process in which a meaningful number of votes are cast on ballots that do not include his name.

Plaintiff Krieger also asserts his rights as a voter and the associated rights of other voters in the Mesquite District. The Supreme Court has held that "[a] citizen's right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, " Baker v. Carr, 369 U.S. 186, 207-08 (1962); see also Gray v. Sanders, 372 U.S. 368, 375 (1963), and a loss of a constitutional right constitutes actual ...

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