United States District Court, D. Arizona
DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE.
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”).
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.
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.
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
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.
Voter Registration Deadline
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.
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.
Prior Lawsuit To Enjoin the Secretary From Implementing
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.
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.
Failure To Count Isabel's Vote
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.)
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.)
2017, Isabel first learned that his ballot had not been
counted. (Id. ¶ 43.)
October 9, 2018, Isabel filed his complaint in this action.
November 27, 2018, the County Defendants filed a motion to
dismiss for lack of subject-matter jurisdiction under Rule
12(b)(1). (Doc. 32.)
November 30, 2018, the Secretary filed a motion to dismiss
for failure to state a claim under Rule 12(b)(6). (Doc. 33.)
The County Defendants' Motion To Dismiss
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.).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.
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).
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.)
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, ” ...