United States District Court, D. Arizona
League of United Latin American Citizens Arizona, et al., Plaintiffs,
Michele Reagan, in her official capacity as Secretary of State of Arizona, et al., Defendants.
G. Campbell Senior United States District Judge
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.
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.
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
Cisneros' ballot was later counted. See Doc. 45.
As a result, his motion is now moot.
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.
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.
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
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.
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.
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).
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 ...