League of United Latin American Citizens Arizona v. Reagan

          ORDER

          David G. Campbell Senior United States District Judge

         In November 2017, the League of United Latin American Citizens Arizona and the Arizona Students' Association (“Plaintiffs”) brought this action against Michele Reagan, in her capacity as Secretary of State of Arizona, and Adrian Fontes, in his capacity as Maricopa County Recorder (“Defendants”). Plaintiffs alleged that Arizona had a dual voter registration system that violated various constitutional guarantees. The parties settled the lawsuit by negotiating a Consent Decree to solve the problem identified by Plaintiffs. Without admitting fault, Defendants agreed to take certain steps to ensure that voters would not be disadvantaged by the issues Plaintiffs had noted. On stipulation of the parties, the Court entered the Consent Decree on June 18, 2018. Doc. 37.

         A federal, state, and local election was held on November 6, 2018. Three days later, on November 9, 2018, the ACLU filed a motion on behalf of Luis Cisneros, arguing that Defendants had violated the Consent Decree. Doc. 39. Although Mr. Cisneros was not a party to the decree, the ACLU argued that he was entitled to enforce it because he was an intended beneficiary. The motion asked the Court to issue orders to Defendant Reagan and the Pima County Recorder. Although the Pima County Recorder was not a party to the Consent Decree, the ACLU argued that the decree could be enforced against her pursuant to Rules 65 and 71 of the Federal Rules of Civil Procedure. Doc. 39.

         Mr. Cisneros complained that he is a naturalized United States citizen, that he registered to vote in Pima County after moving there recently, and that he received a letter from the Pima County Recorder advising him that he was not eligible to vote. His ineligibility stemmed from the fact that Mr. Cisneros holds an F-type Arizona driver's license, which normally is issued to noncitizens. Knowing that he was a citizen, Mr. Cisneros promptly went to the County Recorder's office, submitted his passport as proof of citizenship, and was registered as a voter. Although he was told that he would not be able to vote until after the November 6th election, Mr. Cisneros submitted a provisional ballot for the election. His motion asked the Court to order Defendant Reagan and the Pima County Recorder to count his provisional ballot.

         Mr. Cisneros' ballot was later counted. See Doc. 45. As a result, his motion is now moot.

         On Monday, November 12, 2018, Plaintiffs filed a motion asking the Court to hold that Defendants violated the Consent Decree. Doc. 40. Plaintiffs' motion was based on Mr. Cisneros's situation. Because he, as a holder of an F-type driver's license, initially had not been allowed to register to vote, Plaintiffs alleged that others might be in the same situation. Plaintiffs asked the Court to impose relief that will be described below.

         Plaintiffs' motion comes with some time pressure. As the parties agree, County Recorders and the Secretary of State are required by statute to complete their verification of ballots cast in the November 6th election by this Friday, November 16, 2018. This is a time-intensive process that requires election officials to verify millions of votes cast in Arizona last week. The canvas for the election must be completed ten days later, by November 26, 2018. Counsel for the Maricopa County Recorder's Office explained that the canvas for Maricopa County will be thousands of pages in length and will provide data on votes cast for each office, in each of hundreds of precincts, and substantial additional information. The canvas must be approved by the Maricopa County Board of Supervisors by November 26, 2018, and provided to the Secretary of State. Because of these pressing dates, Plaintiffs asked that their motion be heard on an emergency basis. Doc. 40 at 2.

         On the afternoon of November 12th, the Court entered an order requiring the affected persons - Defendant Reagan and the Pima County Recorder - to file responses the next day, and scheduled a hearing for today at 9:00 a.m. Doc. 41. Defendant Reagan and the Pima County Recorder filed their responses (see Docs. 46, 49), and the Court held a hearing this morning for almost two hours. After confirming that the motion brought by the ACLU is now moot, the hearing focused on issues raised in Plaintiffs' motion and Defendants' responses.

         The Court's schedule also creates time pressure. As the Court advised the parties at the hearing, due to the press of other cases, it was not able to begin reading briefs on this matter until 8:30 p.m. last night. The Court also advised the parties that it must rule by early this afternoon because its schedule is fully committed the remainder of today and on November 15th and 16th.

         A. Complex Issues.

         Plaintiff's motion presents a number of complex issues. These include, but are not limited to, the following:

1. Plaintiffs seek relief against the Pima County Recorder, who is not a party to the Consent Decree. And Defendants assert that the relief requested by Plaintiffs would require action on the part of every other County Recorder in Arizona. With the exception of the Maricopa County Recorder, no County Recorder is a party to this action.

         Plaintiffs contend that the Court may take action against nonparties pursuant to Rule 71. But this rule does not provide a basis for the Court to hold that all County Recorders within Arizona are bound by the Consent Decree. “While Rule 71 establishes the procedure for enforcing an order against a nonparty, it does not define the scope of individuals who are bound by an order, or grant the Court authority over any particular categories of nonparties.” Llorens Pharm., Inc. v. Novis PR, Inc., No. 04-2188, 2010 WL 521144, at *6 (D.P.R. Feb. 9, 2010); see also Intl Millennium Consultants, Inc. v. Taycom Bus. Solutions, 463 Fed.Appx.. 506, 511 n.1 (6th Cir. 2012).

         Plaintiffs also contend that the Consent Decree can be enforced against nonparty County Recorders pursuant to Rule 65(d)(2)(C). That rule allows enforcement of an order against “persons who are in active concert or participation” with a party to the order. Fed.R.Civ.P. 65(d)(2)(C). Case law recognizes that this rule applies to two categories of persons: nonparties who aid and abet a party in violating a court order, and nonparties who are in privity with a nonparty, generally meaning nonparties who are in ...