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Isabel v. Reagan

United States District Court, D. Arizona

June 7, 2019

David Isabel, Plaintiff,
Michele Reagan, et al., Defendants.




         In February 2016, Arizona's Secretary of State, Defendant Michele Reagan (“the Secretary”), published the State's calendar for the 2016 election cycle. This calendar identified Monday, October 10, 2016-Columbus Day-as the voter registration deadline for the 2016 general election (“the 2016 Election”).

         Plaintiff David Isabel (“Isabel”), who moved to Arizona from New York in early October 2016, registered to vote at the Arizona Department of Motor Vehicles (“DMV”) on October 11, 2016. Because this registration effort occurred one day after the registration deadline the Secretary had previously set, Isabel was only allowed to cast a provisional ballot during the 2016 Election, which ultimately wasn't counted by officials within the Maricopa County Recorder's Office.

         Isabel has now sued the Secretary, as well as Maricopa County Recorder Adrian Fontes and Maricopa County (collectively, “the County Defendants”), arguing that the Secretary and the County Defendants violated two federal election statutes as well as Article I, Section 2 of the United States Constitution. The first statute invoked by Isabel is the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq., which requires each state's voter registration deadline to be “not later” than 30 days before the election date. Isabel contends that, because October 10, 2016 was a holiday that fell on a Monday-meaning that post offices and the DMV were closed on that date, as well as the preceding Sunday-Arizonans wishing to register via the mail or at the DMV were effectively required to register at least 31 days before the 2016 Election, in violation of the NVRA's 30-day limit. The other statute invoked by Isabel is the Help America Vote Act of 2002 (“HAVA”), 52 U.S.C. § 21081 et seq., which requires state election officials to count provisional ballots if the officials “determine[] that the individual [who cast the provisional ballot] is eligible under State law to vote.” Isabel contends the HAVA was violated when his provisional ballot wasn't counted.

         Notably, Isabel seeks to utilize 42 U.S.C. § 1983 as a vehicle for asserting claims based upon the NVRA and the HAVA (as well as for the alleged violation of Article I, Section 2 of the Constitution). As a remedy, Isabel seeks “compensatory and punitive damages, ” among other things.

         Now pending before the Court are the County Defendants' motion to dismiss for lack of subject-matter jurisdiction (Doc. 32) and the Secretary's motion to dismiss for failure to state a claim (Doc. 33). The motions are fully briefed and the Court heard oral argument on June 5, 2019. For the following reasons, the Court will deny the County Defendants' motion and grant the Secretary's motion.


         I. Factual History

         A. Voter Registration Deadline

         The facts alleged in the complaint, which the Court assumes to be true for purposes of ruling on the pending motions, are as follows. To be eligible to vote in a particular election, Arizona law requires that a voter's registration form be “received by the county recorder . . . prior to midnight of the twenty-ninth day” before that election. (Doc. 1 ¶ 13.) The twenty-ninth day before the 2016 Election was Monday, October 10. (Id. ¶ 16.) It was also Columbus Day-a state and federal holiday. (Id. ¶¶ 15, 16.) Post offices were closed on Sunday, October 9 and Monday, October 10. (Id. ¶ 17.) The DMV was closed on Saturday, October 8, Sunday, October 9, and Monday, October 10. (Id. ¶ 18.)

         The Secretary set the voter registration deadline for the 2016 Election as Monday, October 10. (Id. ¶ 19.) The Secretary and the County Defendants adopted a policy that deemed invalid any ballot cast in the 2016 Election by a voter who registered on October 11, 2016. (Id. ¶¶ 22, 23.) More than 2, 000 Arizonans registered to vote on October 11, 2016, including Isabel. (Id. ¶ 24.)

         B. Prior Lawsuit To Enjoin the Secretary From Implementing Deadline

         On October 19, 2016, the Arizona Democratic Party and the Democratic National Committee filed a lawsuit against the Secretary, seeking, among other relief, a temporary restraining order to enjoin her 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.” Complaint at 10, Arizona Democratic Party v. Reagan, 16-cv-03618 (D. Ariz. 2016.)[1]

         On November 3, 2016, the Hon. Steven P. Logan issued an order denying the request for emergency injunctive relief. Although Judge Logan agreed with the plaintiffs that the Secretary violated the NVRA by setting the voter registration deadline on Columbus Day, Judge Logan concluded the plaintiffs' “delay in initiating this action, and the resulting prejudice that has arisen due to that delay, precludes relief.” Arizona Democratic Party v. Reagan, 2016 WL 6523427, *16 (D. Ariz. 2016). As a result, Judge Logan didn't require the votes of those who registered on October 11 to be counted. Id. at 18.

         C. Failure To Count Isabel's Vote

         On November 8, 2016, Isabel went to his assigned polling location to cast his ballot. (Doc. 1 ¶ 35.) Isabel was instructed to complete a provisional ballot because he wasn't on the list of eligible voters. (Id.) Isabel's provisional ballot was verified by the County Defendants but not counted because he had registered on October 11. (Id. ¶¶ 36, 37.)

         On or about November 28, 2016, the County Defendants certified the 2016 General Election Official Canvass. (Id. ¶ 39.) On or about December 5, 2016, the Secretary instructed the Assistant Secretary of State to serve as the Acting Secretary of State and certify the 2016 General Election Official Canvass. (Id. ¶ 40.) The Secretary signed the 2016 General Election Official Canvass Certification as both the Secretary of State and the Acting Governor. (Id. ¶ 41.)

         In 2017, Isabel first learned that his ballot had not been counted. (Id. ¶ 43.)

         II. Procedural History

         On October 9, 2018, Isabel filed his complaint in this action. (Doc. 1.)

         On November 27, 2018, the County Defendants filed a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1). (Doc. 32.)

         On November 30, 2018, the Secretary filed a motion to dismiss for failure to state a claim under Rule 12(b)(6). (Doc. 33.)


         I. The County Defendants' Motion To Dismiss

         The County Defendants' motion identifies five reasons why the Court lacks subject-matter jurisdiction over Isabel's claims. First, the County Defendants assert that Isabel lacks standing because his injury (not having his vote counted in the 2016 Election) isn't “fairly traceable” to their conduct and isn't redressable by the Court. (Doc. 32 at 4-7.) Second, they argue the Arizona Legislature's passage of Senate Bill 1307-which ensures no future voter registration deadlines will fall on a weekend or holiday-moots Isabel's claims, as does the doctrine of laches. (Id. at 7-12.) Third, they contend Isabel's claims against them are “improper because recorders are not empowered to establish statewide voter registration deadlines.” (Id. at 13.) Fourth, they argue Isabel's NVRA-based claim is barred because he didn't follow the statute's notice procedures before bringing this lawsuit. (Id. at 13-14.) And fifth, they assert Isabel is barred from bringing a HAVA-based claim because he failed to exhaust administrative remedies. (Id. at 14-15.).[2]However, during the oral argument on June 5, 2019, the County Defendants conceded that their second argument (mootness/laches) lacks merit and withdrew their fifth argument (exhaustion under the HAVA). Accordingly, the Court will only address their first, third, and fourth arguments below.

         A. Standing

         Article III of the Constitution limits the judicial power of the United States to the resolution of cases and controversies. “[O]ne of the controlling elements in the definition of a case or controversy under Article III is standing. The requisite elements of Article III standing are well established: A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Hein v. Freedom from Religion Foundation, Inc., 551 U.S. 587, 598 (2007) (citations and internal quotation marks omitted). To be “fairly traceable, ” the injury cannot “result from the independent action of some third party not before the court.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 42 (1976).

         1. “Fairly Traceable”

         The County Defendants ask the Court to dismiss this action because the injury suffered by Isabel-the failure to count his vote in the 2016 Election-isn't “fairly traceable” to them. They contend that, although they “tallied the ballots in the 2016 General Election, [they] did not set the voter registration deadline, ” which was set by the Secretary. (Doc. 32 at 6.) They further contend they were required to abide by this deadline by the threat of criminal penalties. (Id.) They conclude that Isabel's injury was therefore either caused by the Secretary (who set the deadline) or by Isabel himself (who failed to register in time). (Id.)

         Isabel, in response, contends his injury is directly traceable to the County Defendants because “the County adopted and implemented a policy that deemed invalid any ballot cast in the November 2016 Election by a voter who registered on October 11, 2016.” (Doc. 36 at 6.) As for “the-Secretary-made-us-do-it defense, ” ...

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