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Arizona Democratic Party v. Reagan

United States District Court, D. Arizona

November 3, 2016

Arizona Democratic Party and Democratic National Committee, Plaintiffs,
Michele Reagan, Secretary of State, Defendant.


          Honorable Steven P. Logan, United States District lodge

         Both the United States and the State of Arizona observe two things: (1) general elections are to take place on the Tuesday following the first Monday in November in a given even number year, see 2 U.S.C. § 1, 7; 2 U.S.C. § 3; Ariz. Const. art. VII, § 11; Ariz. Rev. Stat. § 16-211; and (2) “Columbus Day” is a recognized holiday that falls on the second Monday in the month of October, see 5 U.S.C. § 6103(a); Ariz. Rev. Stat. § 1-301(A)(12). While these well-established events are seemingly non-controversial, this election cycle, Arizona has managed a way to sift out some uncertainty.

         Arizona law provides that “[n]o elector shall vote in an election... unless the elector has been registered to vote… and the registration has been received… prior to midnight of the twenty-ninth day preceding the date of the election.” Ariz. Rev. Stat. § 16-120. Applying this calculation strictly, the Arizona voter registration deadline for the upcoming November 8, 2016 general election was set on the 29th day that preceded it -October 10, 2016, Columbus Day.

         Plaintiffs the Arizona Democratic Party and Democratic National Committee (“Committees”) filed the instant lawsuit suing Defendant Michele Reagan in her official capacity as the Secretary of State (“Secretary” or “State”). (Doc. 1.) The Committees claim that the Secretary's decision not to extend the October 10, 2016 voter registration deadline, and to preclude certain voters whose registration applications were received on October 11, 2016 from voting in the November 8, 2016 general election, violated federal and state law, and imposed an unconstitutional burden on voters. The Committees request declaratory and injunctive relief. For the reasons that follow, the Court finds that the Committees prevail on the merits of their claims, in part, but concludes that they are not entitled to relief.

         BACKGROUND [1]

         On February 10, 2016, the Secretary published its 2016 elections calendar on its website, listing October 10, 2016 as the “[v]oter registration deadline for General Election.” (Doc. 15-1 at 4-11, ¶ 4; Hr'g Exh. 25 ¶ 4; Doc. 4-5 at 29-33; Hr'g Exh. 7.)[2]

         Sometime in the months that followed, “at least one county asked [the Secretary's Office] for guidance” with respect to the voter registration deadline and the Columbus Day holiday. (Doc. 30, Hr'g Tr. 68:4-17.) As a result, on August 25, 2016, Eric Spencer (“Spencer”), State Elections Director, sent an email to all fifteen counties notifying them that although it was Columbus Day, the voter registration deadline would fall on October 10, 2016. (Doc. 15-1 at 4-11, ¶ 6; Hr'g Exh. 25 ¶ 6; Doc. 30, Hr'g Tr. 68:4-17.)

         On August 26, 2016, the Secretary issued the Arizona 2016 General Election Publicity Pamphlet. (Docs. 4-5 at 40-167; Hr'g Exh. 9;[3] Doc. 15-1 at 4-11, ¶ 6; Hr'g Exh. 25 ¶ 6.) See also Ariz. Rev. Stat. § 19-123(A) (“the secretary of state shall cause to be printed… a publicity pamphlet”). Following the Secretary's message to voters, the pamphlet provides in relevant part:

DEADLINE: October 10 is the registration deadline for the 2016 General Election, if you are not already registered to vote.
REGISTER ONLINE: Register to vote online by using the EZ voter registration service at A valid Arizona driver's license or non-operating identification license is necessary.
PAPER REGISTRATION: Voter registration forms are available:
From the Secretary of State's website (;
By calling the Secretary of State's Office at 1-877-THE-VOTE (1-877-843-8683);
By contacting your County Recorder's Office (listed on page 11); or
At other government offices and public locations throughout the state.
*Paper forms must be received by your County Recorder or the Secretary of State's Office BEFORE 5:00 p.m., October 10, 2016. Please note, some County Recorder Offices may be closed on October 10 for Columbus Day; plan accordingly. Online registration is available through midnight on October 10.

(Doc. 4-5 at 44 (emphasis in original.) The pamphlet was posted on the Secretary's website and sent to each household with a registered voter. (Doc. 15-1 at 4-11, ¶ 5; Hr'g Exh. 25 ¶ 5.)

         On September 19, 2016, Spencer Scharff (“Scharff”), Voter Protection Director for the Arizona Democratic Party, sent letters to all fifteen Arizona county recorders requesting that the deadline be extended to October 11, 2016 pursuant to Ariz. Rev. Stat. § 1-303, because certain voter registration methods would not be accessible to applicants on Columbus Day. (Doc. 5-1 at 4-4; Hr'g Exh. 12; Doc. 30, Hr'g Tr. 22:11-24:18.) Scharff sent a copy of those letters to Spencer. (Doc. 15-1 at 4-11; Hr'g Exh. 25; Doc. 30, Hr'g Tr. 22:15-22.) With the exception of Mohave County, all county recorders responded to Scharff informing him that they would not extend the registration deadline date “as determined by the Secretary of State.” (Doc. 5-1 at 6, 8, 10, 12; Hr'g Exhs. 13-16; Doc. 5 ¶ 3.) The Mohave county recorder responded by email advising that it would extend the voter registration deadline to October 11, 2016 because they were one of the few counties whose offices would be closed on the holiday. (Doc. 5-1 at 14; Hr'g Exh. 17.)

         On September 19, 2016, Arizona House Minority Leader Eric Meyer sent a letter to Arizona Attorney General Mark Brnovich requesting a formal opinion as to last day to submit voter registration to be eligible to vote in the general election. (Doc. 5-1 at 16-17; Hr'g Exh. 18.) The letter expressed that the deadline should be extended to October 11th pursuant to Ariz. Rev. Stat § 1-303. (Id.) On September 28, 2016, Deputy Solicitor General for the Arizona Attorney General's Office, Dominic Draye, responded to Meyer's letter, declining to issue an official attorney general opinion regarding the “policy decision” of the Secretary. (Doc. 5-1 at 19; Hr'g Exh. 19.)

         In Arizona, residents may generally register to vote by one of the following methods: in-person at county recorder offices, Ariz. Rev. Stat. § 16-134; in-person through designated public assistance agencies, Ariz. Rev. Stat. §§ 16-134, 16-140; in-person at a Motor Vehicle Division (“MVD”) office, Ariz. Rev. Stat. § 16-112; by mail, § 16-134; or online through the Service Arizona website, (Doc. 4-3 at 2-24; Doc. 4-4 at 1-24; Hr'g Exh. 4 at p. 36).

         On October 10, 2016, post offices and MVD offices were closed. With the exception of Mohave County, all 14 county recorder offices were open and received in-person voter registration applications (Doc. 15-1 at 4-11, ¶¶ 17, 20; Hr'g Exh. 25 ¶¶ 17, 20.) Voter registration applications were received online via Service Arizona. The Secretary's office was open and received voter applications in-person and by email (to Spencer). (Doc. 15-1 at 4-11, ¶ 18; Hr'g Exh. 25 ¶ 18; Hr'g Exh. 22.) Pursuant to an agreement with the counties, one of the headquarters or field offices for each of the democratic and republican parties was open and received in-person voter registration applications which would be accepted by the counties the following day. (Doc. 30, Hr'g Tr. at 116:3-10 and 63:4-8; Doc. 15-1 at 4-11, ¶ 18; Hr'g Exh. 25 ¶ 18.)

         On October 10th, however, there was a two-hour period of interruption on the voter registration website due to heavy traffic. Counsel for the Arizona Democratic Committee sent a letter to the Secretary concerning this issue and requesting that the voter registration deadline be extended to October 11, 2016. (Doc. 30, Hr'g Tr. 96:9-20, 98:10 - 99-18, 117:18-24; Hr'g Exhs. 21, 22.) Spencer, rather than the Secretary, responded by email, declining to extend the deadline. (Doc. 30, Hr'g Tr. 99:19-100:23; Hr'g Exh. 22.)[4]

         On October 11, 2016, county recorder offices continued to receive voter registration applications. (Doc. 15-1 at 4-11, ¶ 17; Hr'g Exh. 25 ¶ 17; Hr'g Exh. 22.)[5]Individuals went to the Committees' field offices seeking to register to vote for the upcoming election. (Doc. 5 at 4, ¶ 12.) While individuals were provided with applications to complete that would be delivered to the Maricopa County recorder, voters were informed that because the deadline to register fell on October 10, they were too late to be eligible to vote in the general election. (Doc. 5 at 4, ¶¶ 12-13.)

         On October 19, 2016, nine days after the voter registration deadline had passed and one week into early voting, the Committees filed a complaint initiating the instant action. (Doc. 1.) In the complaint, they claim: that the October 10, 2016 deadline violated the National Voter Registration Act of 1993 (“NVRA”) (Count I); that the Secretary's refusal to extend the voter registration deadline to October 11, 2016 unconstitutionally burdened individuals' fundamental right to vote in violation of the First and Fourteenth Amendments to the United States (Count II); and that the October 10, 2016 deadline violated established state law (Count III).

         In the complaint, the Committees ask the Court to issue an order: (1) “[d]eclaring that all otherwise eligible Arizona voters who submitted a valid voter registration application, through any acceptable means, before midnight on October 11, 2016 are eligible to vote in the November 8 Election;” (2) [p]reliminarily and permanently enjoining [the Secretary] from disqualifying any Arizona voter from voting a regular ballot in the November 8 Election solely because he or she did not register by October 10, 2016, if he or she submitted a valid voter registration application before midnight on October 11, 2016 and is otherwise eligible to vote;” (3) “[r]equiring [the Secretary] to ensure that voter registration applications submitted before midnight on October 11, 2016 are processed in time for eligible voters to be able to vote a regular ballot in the November 8 Election;” (4) “[r]equiring [the Secretary] to identify all eligible Arizona voters who submitted a voter registration application at any time October 11, 2016, and notify such voters that they are eligible to vote in the November 8 Election by: (1) mailing a notice to each voter's current residential address (post-marked as soon as possible but, in any event, no later than November 1, 2016); and (2) posting a prominent notice to this effect on Defendant's website;” and (5) “[r]equiring [the Secretary] to provide to [the Committees] (as soon as possible but, in any event, no later than November 1, 2016) a list of all eligible Arizona voters who submitted a voter registration application at any time on October 11, 2016.” (Doc. 1 at 10-11.)

         The Committees now ask for modified relief, acknowledging the proximity of the upcoming general election. (Doc. 37.) The Committees request that the Court “modify” the relief sought and order the Secretary to: (1) “ensure that voters who registered on October 11, 2016 may vote a provisional ballot in the November 8 Election and that such provisional ballots will be counted upon confirmation that the voter registered on October 11 and is otherwise eligible to vote;” and (2) “shall notify all October 11 registrants that they may vote a provisional ballot in the November 8 Election by: (1) immediately mailing a notice (marked as “Official Election Material, ” and identifying the voter's assigned polling place) to such voters' current residential address; and (2) immediately posting a prominent notice to this effect on [the Secretary's] website.” (Doc. 37 at 2.)

         Concurrent with the filing of the Complaint, Plaintiffs filed an emergency motion for a temporary restraining order and preliminary injunction. (Doc. 2.) In light of the looming general election, the Court ordered expedited briefing; a Response (Doc. 14), Reply (Doc. 22), and Surreply (Doc. 29) have been filed. The Court placed the parties on notice that the trial on merits would be consolidated with the hearing on the motion (Doc. 8), and an expedited trial on the merits was held on October 21, 2016 (Docs. 17, 30).[6]The parties were provided with an opportunity to present relevant witnesses and testimony as well as oral argument on the controlling issues. The Court heard the testimony of three witnesses: Spencer Scharff, Eric Spencer, and Mary Fontes, a Federal Compliance Officer for Maricopa County.[7]

         Subsequent to the hearing, the Committees filed: (1) a motion to strike exhibits attached to the Secretary's sur-reply (Doc. 31); (2) a motion to supplement the record with an October 28, 2016 article in which the Secretary purportedly advocated for the inclusion of the 2, 069 October 11, 2016 voter registration applications (Doc. 34); and (3) a motion to modify the relief requested (Doc. 37). The Secretary has filed responses objecting to both. (Docs. 32, 36, 38.) The Secretary also filed a notice of supplemental authority (Doc. 33).


         “To be entitled to a permanent injunction, a plaintiff must demonstrate: (1) actual success on the merits; (2) that it has suffered an irreparable injury; (3) that remedies available at law are inadequate; (4) that the balance of hardships justify a remedy in equity; and (5) that the public interest would not be disserved by a permanent injunction.” Indep. Training & Apprenticeship Program v. Cal. Dep't of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013). See also Arizona Dream Act Coalition v. Brewer, 818 F.3d 901, 919 (9th Cir. 2016); eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006); Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987) (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.”). In contrast to a prohibitory injunction, a mandatory injunction ordering a responsible party to take action should not issue “unless the facts and law clearly favor the moving party, ” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994), and “extreme or very serious damage will result, ” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009). See also Park Vill. Apartment Tenants Ass'n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011) (“a mandatory injunction is particularly disfavored” and should not be “issued in doubtful cases”); Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979).

         An injunction is “an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 24 (2008). See also eBay, 547 U.S. at 391, 394 (“The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court”). Further, whether declaratory judgment should be granted is discretionary. Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 533 (9th Cir. 2008); Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995); Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1107 (9th Cir. 2011); 28 U.S.C. § 2201 (“In a case of actual controversy within its jurisdiction, ” the Court may “declare the rights and other legal relations of any interested party seeking such declaration.”).


         I. Jurisdiction and Venue

         This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, as a case arising under the laws of the United States, 42 U.S.C. §§ 1983 and 1988 and 52 U.S.C. § 20510; under 28 U.S.C. §§ 1343(a)(4) and 1357, as a case to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote; and under 28 U.S.C. § 1367, which confers supplemental jurisdiction over the state law challenge. The requests for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, 52 U.S.C. § 20510, and Rules 57 and 65 of the Federal Rules of Civil Procedure.

         Jurisdiction over the Secretary exists because she is sued in her official capacity as an elected official of Arizona in which she resides, and venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because the events or omissions giving rise to the claims occurred in this district.

         A. Necessary Parties

         The Secretary argues that the Court should dismiss Counts II and III of the complaint due to the Committees' failure to name necessary parties in this case - Arizona county officials. (Docs. 14, 29, 36.) This challenge is rejected.

         Rule 19 of the Federal Rules of Civil Procedure identifies when an absent party is “necessary” and must be joined in suit if feasible. First, a person is necessary if “the absence of the party would preclude the district court from fashioning meaningful relief as between the parties.” Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 879 (9th Cir. 2004). See Fed. R. Civ. P. 19(a)(1)(A). The sufficiency of the relief available “is determined on the basis of those persons who are already parties, and not as between a party and the absent person whose joinder is sought.” Angst v. Royal Maccabees Life Ins. Co., 77 F.3d 701, 705 (3rd Cir. 1996). “Second, a person is necessary if he has an interest in the action and resolving the action in his absence may as a practical matter impair or impede his ability to protect that interest.” Salt River Project Agr. Imp. and Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012) (citing Fed.R.Civ.P. 19(a)(1)(B)(i)). “Third, a person is necessary if he has an interest in the action and resolving the action in his absence may leave an existing party subject to inconsistent obligations because of that interest.” Id. (citing Fed.R.Civ.P. 19(a)(1)(B)(ii)).

         The Secretary maintains that because no election official with authority to enforce the voter registration deadline has been named, any relief the Committees would receive against the Secretary would be hollow. See Fed. R. Civ. P. 19(a)(1). She contends that she “does not have authority under Arizona law to declare who is, and who is not, a registered voter. Rather, Arizona law delegates to the Counties, not the State, the responsibility for determining who is a registered voter when they prepare precinct registers listing those eligible voters. A.R.S. § 16-168(A). And in that role, it is the Counties, not the Secretary, who are responsible for disqualifying voters who fail to comply with registration requirements.” (Doc. 29 at 8 (emphasis in original).) Consequently, the Secretary contends she is unable to guarantee compliance with any injunction issued by the Court, and the counties are the proper defendants. This argument is rejected.

         The Secretary mischaracterizes the nature of her position and her relationship with the counties in administering voter registration. The Secretary is Arizona's chief election officer who is responsible for overseeing and administering elections in Arizona.[8]See Ariz. Rev. Stat. § 16-142(A). The Secretary has the authority to promulgate rules and procedures for elections, such as voter registration, which encompasses determining voter registration deadlines. See Ariz. Rev. Stat. § 16-452(A) (“the secretary of state shall prescribe rules to achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency on the procedures for early voting and voting, and of producing, distributing, collecting, counting, tabulating and storing ballots.”); § 16-168(J) (“The secretary of state shall develop and administer a statewide database of voter registration information that contains the name and registration information of every ...

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