Case Information
WO
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Tyler Bowyer, et al., No. CV-20-02321-PHX-DJH
Plaintiffs, ORDER
v.
Doug Ducey, et al.,
Defendants.
Plaintiffs bring their Complaint seeking injunctive relief from this Court, specifically, to “set aside the results of the 2020 General Election,” because they claim the election process and results were “so riddled with fraud, illegality and statistical impossibility . . . that Arizona voters, courts and legislators cannot rely on or certify” its results. (Doc. 1 at 2). By any measure, the relief Plaintiffs seek is extraordinary. If granted, millions of Arizonans who exercised their individual right to vote in the 2020 General Election would be utterly disenfranchised. Such a request should then be accompanied by clear and conclusive facts to support the alleged “egregious range of conduct in Maricopa County and other Arizona counties . . . at the direction of Arizona state election officials.” ( Id. ) Yet the Complaint’s allegations are sorely wanting of relevant or reliable evidence, and Plaintiffs’ invocation of this Court’s limited jurisdiction is severely strained. Therefore, for the reasons stated herein, the Complaint shall be dismissed.
I. Background
In Arizona, more than 3.4 million voters participated in the November 3, 2020, General Election. Thereafter, pursuant to A.R.S. § 16-602, several counties performed a hand count of sample ballots to test the tabulation equipment, and either no discrepancies were found or, if there were, they were “within the acceptable margin.” [1] Arizona law also requires the secretary of state, in the governor’s presence, to certify the statewide canvas on the fourth Monday after a general election. A.R.S. § 16-648. On November 30, 2020, Secretary of State Katie Hobbs, in the presence of Governor Doug Ducey, certified the statewide canvas. (Doc. 40 at 4). The Canvas shows that former Vice President Joseph Biden prevailed over President Donald Trump by more than ten thousand votes. [2] On that same day, Governor Ducey signed the Certificate of Ascertainment for Vice President Biden’s presidential electors. (Doc. 40 at 4). The Certificate was then transmitted to the United States Archivist pursuant to the Electoral Count Act. ( Id. ); s ee also 3 U.S.C. § 6.
In their Complaint and the accompanying Motion for Temporary Restraining Order (“TRO”) filed on December 2, Plaintiffs “contest” the election and ask this Court to compel the Governor to “de-certify” these results. (Docs. 1 ¶ 145; 2 at 10). The Complaint also requests that this Court grant a permanent injunction “enjoining Secretary Hobbs and Governor Ducey from transmitting the currently certified election results to the Electoral College,” declare the election results unconstitutional, and seize all voting machines, equipment, software, and other election-related records and materials, including all ballots cast. [3] (Doc. 1 at 51–52). The Complaint claims to show “multifaceted schemes and artifices implemented by Defendants and their collaborators” to defraud the election. ( Id. at ¶ 3). And these schemes allegedly resulted in “the unlawful counting, or fabrication, of hundreds of thousands of illegal, ineligible, duplicate or purely fictitious ballots.” ( Id. ) Of the fourteen named Plaintiffs, three are registered voters and GOP Chairs for various Arizona counties. ( Id. at ¶¶ 29–31). The remaining eleven are Republican nominees for Arizona’s presidential electors. ( Id. at ¶ 28). One of the eleven, Dr. Kelli Ward, filed suit in state-court over allegations of fraud in this election. See Ward v. Jackson , Case No. CV2020-015285, slip. op. (Ariz. Super. Ct. Dec. 4, 2020) (finding no evidence of alleged fraud and dismissing claims of election misconduct); (Doc. 55-1). In that case, on December 8, 2020, the Arizona Supreme Court affirmed the Maricopa County Superior Court’s findings that there was no evidence of fraud or misconduct in Arizona’s election. ( Ward v. Jackson , CV2020-015285 (Ariz. 2020); (Doc. 81-1).
Plaintiffs’ Complaint contains four counts, three of which assert 42 U.S.C. § 1983 claims for violations of the Constitution’s Elections and Electors Clauses, as well as the Fourteenth Amendment’s Due Process and Equal Protection guarantees. (Doc. 1 ¶¶ 103– 34). The final count, which does not specify a cause of action, is for “Wide-Spread Ballot Fraud.” ( Id. at ¶¶ 135–41).
On December 3, the day after Plaintiffs filed their Complaint, the Court received a Motion to Intervene from the Arizona Democratic Party, which was subsequently denied. (Docs. 26 and 69). The Court also received a Motion to Intervene from the Maricopa County Board of Supervisors and Maricopa County Recorder Adrian Fontes, which was granted. (Docs. 27 and 32). The Court held a status conference on the same day, in which it scheduled a December 8 hearing on the TRO. (Doc. 28). By subsequent Order (Doc. 43), the Court converted that hearing to oral argument on the Motions to Dismiss filed on December 4. (Docs. 36, 38, and 40). Plaintiffs have filed their Response to the Motions (Doc. 44), and Defendants have filed their Replies. (Docs. 53, 54, and 55). On December 8, 2020, the Court held oral argument on the Motions to Dismiss and took this matter under advisement. Being fully briefed on the matter, the Court now issues its ruling.
…
II. Analysis
Given the import of the overarching subject—a United States Presidential Election—to the citizens of Arizona, and to the named Plaintiffs, the Court is compelled to make clear why it finds it inappropriate to reach the merits of Plaintiffs’ Complaint and why it must grant the Motions to Dismiss this matter in its entirety. The Court will endeavor to lay bare the independent reasons for its conclusions, including those related to Article III standing, abstention, laches, mootness, and the federal pleading standards, which govern its review.
A. Article III Standing
“To ensure that the Federal Judiciary respects the proper—and properly limited—
role of the courts in a democratic society, a plaintiff may not invoke federal-court
jurisdiction unless he can show a personal stake in the outcome of the controversy.”
Gill
v. Whitford
,
“[A] plaintiff seeking relief in federal court must first demonstrate . . . a personal
stake in the outcome,”
Baker v. Carr
,
To establish an injury in fact, “a plaintiff must show that he or she suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’”
Spokeo,
Rule 12(b)(1) authorizes a court to dismiss claims over which it lacks subject-matter
jurisdiction. A Rule 12(b)(1) challenge may be either facial or factual.
Safe Air for
Everyone v. Meyer
,
1. Elections and Electors Clause – Count One Plaintiffs allege in Count One that Defendants violated the Elections and Electors Clauses and 28 U.S.C. § 1983 by, among other things, losing or destroying absentee ballots, and/or replacing those ballots with “blank ballots filled out by election workers, Dominion or other third parties” sending thousands of absentee ballots to someone besides the registered voter that “could have been filled out by anyone.” (Doc. 1 at 41). Defendants argue that Plaintiffs do not have standing to assert such a claim. (Doc. 40 at 8–9).
The Elections Clause of the United States Constitution states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]” U.S. Const. art. I, § 4, cl. 1. The Elections Clause authorizes the state governments to regulate federal elections held in the state, while Congress retains “exclusive control” to alter a state’s regulations. Colegrove v. Green , 328 U.S. 549, 554 (1946). A separate provision, the “Electors Clause” of the Constitution, states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .” U.S. Const. art. II, § 1, cl. 2.
Plaintiffs’ Complaint alleges that Defendants violated the Elections Clause. However, the Complaint does not allege grounds for standing to assert this claim, nor does it distinguish between the status of the groups of Plaintiffs. At oral argument, Plaintiffs’ counsel stated that eleven of the Plaintiffs were Republican Party nominees to be electors, and the other three were county GOP Chairs. As an initial matter, Plaintiffs’ briefing does not contain any arguments that the GOP Chairs have standing to assert this claim and the Court will dismiss the claim as to the GOP Chairs outright.
Plaintiffs argue that the Plaintiff Electors should be considered “candidates,” and
thus that they have standing under the Electors and Elections Clause pursuant to an Eighth
Circuit case,
Carson v. Simon
,
Plaintiff Electors likewise assert that under Arizona law they should also be considered “candidates.” (Doc. 44 at 5–6) (citing A.R.S. § 16-344). However, the Electors are not candidates for office as the term is generally understood. Arizona law makes clear that the duty of an Elector is to fulfill a ministerial function, which is extremely limited in scope and duration, and that they have no discretion to deviate at all from the duties imposed by the statute. See A.R.S. § 16-212(C) (“After the secretary of state issues the statewide canvass containing the results of a presidential election, the presidential electors of this state shall cast their electoral college votes for the candidate for president and the candidate for vice president who jointly received the highest number of votes in this state as prescribed in the canvass.”) (emphasis added). Arizona voters do not show up to vote for any single Electors listed next to the presidential candidates’ names; they vote for their preferred presidential candidate. By specifying that the electors “shall be enclosed in a bracketed list” next to “the surname of the presidential candidate and vice-presidential candidate,” A.R.S. § 16-507(B) clarifies and distinguishes the Electors’ ministerial status from that of the presidential candidate running for office, the latter who unquestionably suffers the discrete injury required for standing. Notably, the Republican candidate whose name was on the ballot is not a plaintiff in this case.
Other circuit courts to reach the issue have cited the
Carson
decision with
disapproval, noting that there was no precedent for expanding standing in the way that it
did.
[7]
See Bognet v. Sec’y of Commonwealth of Pa
.,
Elector Plaintiffs have not established they can personally bring suit, and therefore,
they do not have standing to bring Count One.
[8]
Therefore, the Court will dismiss Count
of the presidential candidate and vice-presidential candidate who is seeking election jointly
with the presidential candidate shall be listed directly below the name of the presidential
candidate. The indicator for the selection of the presidential and vice-presidential
candidates shall be directly next to the surname of the presidential candidate, and one mark
directly next to a presidential candidate’s surname shall be counted as a vote for each
elector in the bracketed list next to the presidential and vice-presidential candidates.”
23
See also Carson,
25
26 assume that office based on the public’s selection of entirely different individuals.”).
27 28 The Court notes that Count One of the Complaint makes passing references to the “VRA and HAVA,” (the Voting Rights Act and the Help America Vote Act of 2002) but does not
bring any claims under these statutes. (Doc. 1 ¶ 106). One.
2. Vote Dilution – Count Two In Count Two, Plaintiffs allege Equal Protection violations based on Defendants’ failure to comply with Arizona law by permitting “illegal votes,” allowing “voting fraud and manipulation,” and in preventing “actual observation and access to the elector process,” which allegedly resulted in “the dilution of lawful votes . . . and the counting of unlawful votes.” (Doc. 1 at 45). Plaintiffs ask the Court to order that “no ballot processed by a counting board in Arizona can be included in the final vote tally unless a challenger [i]s allowed to meaningfully observe the process.” (Doc 1 ¶ 120). Absent from the Complaint is an allegation that Plaintiffs (or any registered Arizona voter for that matter) were deprived of their right to vote. Instead, they bring baseless claims of “disparate treatment of Arizona voters, in subjecting one class of voters to greater burdens or scrutiny than another.” (Doc. 1 ¶ 115). They do not allege what “class” of voters were treated disparately. Nor do the Elector Plaintiffs cite to any authority that they, as “elector delegates,” are a class of protected voters. Defendants contend that Plaintiffs do not have standing to assert these claims and point out that these allegations are nothing more than generalized grievances that any one of the 3.4 million Arizonans who voted could make if they were so allowed. The Court agrees.
Here, Plaintiffs have not alleged a concrete harm that would allow the Court to find
Article III Standing for their vote dilution claim. As courts have routinely explained, vote
dilution is a very specific claim that involves votes being weighed differently and cannot
be used generally to allege voter fraud. “Contrary to the Voter Plaintiffs’
conceptualization, vote dilution under the Equal Protection Clause is concerned with votes
being weighed differently.”
Bognet
,
Additionally, Plaintiffs cannot sustain their Equal Protection Clause claim on a vote
dilution theory.
See Bognet
, 980 F.3d at 355 (rejecting Equal Protection theory and
explaining “[t]his conceptualization of vote dilution—state actors counting ballots in
violation of state election law—is not a concrete harm under the Equal Protection Clause
of the Fourteenth Amendment”);
see also Shipley
,
Setting aside that Plaintiffs’ claims regarding the election are not viable vote
dilution claims, Plaintiffs also have not requested relief that is redressable in a tailored way
as is required.
See Gill
,
B. Abstention
Defendants also argue the Court should abstain from reaching Plaintiffs’ claims based on their similarities with ongoing state court cases. Yesterday, the Arizona Supreme Court ruled on one such case—filed by Dr. Kelli Ward—seeking to “set aside the 2020 General Election results.” See Ward , CV 2020-015285 (Ariz. 2020); (Doc. 81-1). That case was filed pursuant to A.R.S. § 16-672 and was also filed after Governor Ducey certified the election results on November 30, 2020. (Doc. 58-1 at 17). The Ward plaintiffs alleged an insufficient opportunity to observe election officials, an overcounting of mail- in ballots by not adequately comparing signatures on the ballot envelopes, and errors in the ballot duplication process. ( Id. at 17–21). After an evidentiary hearing, the Maricopa County Superior Court issued a ruling on December 4, 2020, finding that there was no misconduct, fraud, or effect on the outcome of the election. [10] ( Id. ) This ruling was unanimously affirmed by an en banc panel of the Arizona Supreme Court on expedited review.
Here, Plaintiffs’ Complaint similarly relies upon A.R.S. § 16-672 and its provisions related to bringing suit for alleged election misconduct, including illegal votes and erroneous counting. (Doc. 1 at ¶ 15). A.R.S. § 16-672 also provides that an elections contest brought under this statute should be filed in the superior court of the county in which the person contesting resides or in the superior court of Maricopa county. A.R.S. § 16-672(B). Plaintiffs aver that their claims seek federal action under federal statutes, and therefore, their claims are distinguishable from the claims being litigated in the state court. The Court disagrees.
Generally, a federal court has a duty to exercise the jurisdiction conferred by
Congress. However, under certain circumstances, it is prudent for a federal court to abstain
from hearing a matter. “Indeed, we have held that federal courts may decline to exercise
its jurisdiction, in otherwise ‘exceptional circumstances,’ where denying a federal forum
would clearly serve an important countervailing interest.”
Quackenbush v. Allstate Ins.
them should have been brought at a time when any legal deficiencies could have been
cured,” and citing
Lubin v. Thomas
,
Ward
, CV 2020-015285, at *7 (Ariz. 2020); (Doc. 81-1).
Co
.,
The Ninth Circuit has enumerated an eight-part test for whether
Colorado River
abstention is warranted, stressing that the factors are “not a mechanical checklist,” with
some factors that “may not have any applicability to a case.”
Seneca Ins. Co., Inc. v.
Strange Land, Inc
.,
Factors two through seven all support abstaining from this case. To begin, this
federal forum is less convenient than the state forum, considering the state election law
violations alleged, the claims are brought against state actors, and the interplay of state
election law. Moreover, the present suit reflects the very essence of “piecemeal litigation,”
with many of the same parties and attorneys litigating related matters in both forums. As
to the primacy of cases, this case was the last filed case. All of the state court litigation
filed related to the election preceded this action. As to the nature of the claims, while
Plaintiffs bring their claims under federal laws, the crux of their arguments, and the statutes
upon which they rely, involve Arizona election law and the election procedures carried out
at the county and state level by state officials. The state courts are adequately equipped to
protect the rights of the named Plaintiffs, especially considering that Plaintiff Ward already
pursued her grievances there. Moreover, as Congress has conferred concurrent jurisdiction
on state courts to adjudicate Section 1983 claims, there is no concern that the state is unable
to adjudicate Plaintiffs’ Section 1983 claims.
Felder v. Casey
,
Moreover, when considering abstention, “proper constitutional adjudication, regard
for federal-state relations, or wise judicial administration,” also inform this Court.
Quackenbush
,
C. Eleventh Amendment
Defendants also argue that the Eleventh Amendment bars Plaintiffs’ demands for relief because they, as state officials who have not consented to being sued, are immune from suit. Further, they argue that no exception applies, that the relief Plaintiffs seek is not prospective, and that the claims are barred.
The Eleventh Amendment to the Constitution provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. Such immunity applies when a citizen brings a claim against their
own state.
See Hans v. Louisiana
,
There are three recognized exceptions to the above: (1) Congress has abrogated the
immunity within a federal statute; (2) the State has waived immunity and allowed
individuals to sue it pursuant to specific state statutes; and (3) in “claims seeking
prospective
injunctive relief against state officials to remedy a state’s
ongoing
violation of
federal
law.”
Ariz. Students’ Ass’n v. Ariz. Bd. of Regents
,
None of these exceptions are present here. As for Plaintiffs’ 42 U.S.C. § 1983
claims, Congress did not abrogate the states’ immunity from suit in the enacting language
of Section 1983, and therefore, the Eleventh Amendment bars those claims.
See Will v.
Michigan Dep’t of State Police
,
“In determining whether the doctrine of
Ex parte Young
avoids an Eleventh
Amendment bar to suit, a court need only conduct a straightforward inquiry into whether
[the] complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.”
Verizon Md., Inc. v. Pub. Serv. Comm’n
,
Here, Plaintiffs face a number of difficulties in their attempt to pierce Defendants’
sovereign immunity. Defendants argue that all of Plaintiffs’ allegations are actually state
law allegations masked under federal law. Defendants point to numerous instances in
Plaintiffs’ Complaint where Arizona state election law is relied on, including their catch-
all fraud claims, which are entirely based on state law. The Eleventh Amendment clearly
bars such claims.
See Pennhurst
,
However, even assuming that Plaintiffs established that their claims are indeed
independent federal claims, it is unclear what
ongoing
violation of federal law is being
asserted. Plaintiffs allege Due Process and Equal Protection claims, along with a catch-all
fraud claim, that arise from Defendants’ alleged failure to follow Arizona state election
laws. (Doc. 1 at ¶¶ 106–120). These numerous alleged violations—related to alleged
issues with signature verification, ballot duplication, and poll observation—concern past
conduct. The relief requested—compelling the Governor to decertify the election—
similarly seeks to alter past conduct. Plaintiffs have not identified an ongoing violation to
enjoin. In short, “Plaintiffs are seeking to undo what has already occurred, as their
requested relief reflects.”
See King v. Whitmer
,
The Eleventh Amendment bars the injunctive relief sought.
D. Laches
Defendants also argue that the doctrine of laches bars Plaintiffs’ claims. Laches
will bar a claim when the party asserting it shows the plaintiff unreasonably delayed in
filing the action and the delay caused prejudice to the defendant or the administration of
justice.
Danjaq LLC v. Sony Corp.
, 263 F.3d 942, 951–52 (9th Cir. 2001) (noting that
laches requires a “defendant [] prove both an unreasonable delay by the plaintiff and
prejudice to itself”). Laches can bar untimely claims for relief in election cases, even when
the claims are framed as constitutional challenges.
Soules v. Kauaians for Nukolii
Campaign Comm.
,
Plaintiffs filed their Complaint and request for TRO seeking to “de-certify” the election results on December 2, 2020, nearly a month after the General Election on November 3, 2020. Plaintiffs conclusively argue that they waited this long because they “could not have known the basis of their claim, or presented evidence substantiating their claim, until after the election.” (Doc. 44 at 9). They further state that, because “Arizona election officials and other third parties did not announce or publicize their misconduct, and in fact prevented Republican poll watchers from observing the ballot counting and handling, it took Plaintiffs additional time post-election to gather the fact and expert witness testimony presented in the Complaint.” ( Id .) During oral argument, Plaintiffs’ counsel repeatedly stated that the alleged fraud related to the Dominion voting machines “irregularities” with the voting machines ( Id. at ¶¶ 50–52); and certification of the Dominion voting system on November 18, 2020 ( Id. at ¶ 53).
was not known until election night, when their experts noted a “blip” in their reporting data that showed an increase in votes for Joe Biden around 8:00 p.m. Plaintiffs also argue that A.R.S. §16-673 supports the timeliness of their Complaint because it requires an elector to file a challenge to the election in state court within five days of certification of the election.
Plaintiffs’ Complaint includes a hodge-podge of alleged misconduct by Arizona elections officials, occurring on various dates over the past weeks, months, and even years. In addition to the objections regarding poll watchers’ inability to observe ballot counting and handling, Plaintiffs also object to the manner and process by which Arizona election officials matched signatures on absentee ballots (Doc. 1 ¶¶ 46–48); to the process and role assigned to poll referees in settling unresolved disputes between adjudicators ( Id. at ¶ 49); to “irregularities” with the voting machines on Election Day and before ( Id. at ¶¶ 50–52); and to the certification of the Dominion voting system on November 18, 2020 ( Id. at ¶ 53).
The affidavits or declarations upon which Plaintiffs rely clearly shows that the basis for each of these claims was either known well before Election Day or soon thereafter, and thus cannot be excused by a lack of knowledge nor an inability to substantiate their claims through December 2. For example, Plaintiffs’ Complaint cites to documents showing that Plaintiffs were in possession of information about suspected irregularities with the Dominion voting machines as early as 2018. ( Id. at ¶¶ 21, 69, 71–73) (referencing “publicly available evidence (including judicial and administrative proceedings)” that discuss concerns with security flaws in Dominion voting machines dating back to 2018); (Doc. 1-10 at 19, Ex. 20, Declaration of Mark Paul Law dated November 24, 2020 (describing his concerns over Maricopa County Dominion voting machine security and observations while poll watching on October 25, 2020 and November 1, 2020); id. at 30, Ex. 22, Declaration of Gregory Wodynski dated November 23, 2020 (describing his concerns over Maricopa County Dominion voting machine security and his perception that “Bruce,” a Dominion employee, could manually manipulate voter data files while poll watching on October 24, 2020 and November 1, 2020).
Plaintiffs also include documents showing that the facts underlying their allegations
of ballot counting and verification misconduct occurred weeks before Election Day.
Canvassing in Arizona began in October, and the poll watcher declarations and affidavits
attached to the Complaint object to the signature verification and ballot process during this
time. (
See
Doc. 1-3 at 7, Ex. 5) (containing unsigned Declaration dated October 25, 2020
from poll watcher objecting to “NO EFFECTIVE oversight” in signature verification
rooms);
id.
at 9, Ex. 5A (document listing poll watcher objections made on 10/7/20,
10/23/20, 10/24/20, 10/29/20); (Doc. 1-10 at 25, Ex. 21) (containing a Declaration of poll
watcher Judith Burns dated November 16, 2020 and noting her objections in observing the
signature verification and ballot processing on October 17, 2020 and October 21, 2020).
In a statement from Ms. Linda Brickman, the First Vice-Chair of the Maricopa County
Republican Committee, she represents that she had ongoing concerns regarding the
signature verification for early and mail-in ballots during her time as an elections worker
“from 10/19/20 to 11/11/20” (Doc. 1-10 at 38, Ex. 23) and had objections to the Logic and
Accuracy Certification of the Dominion voting systems that occurred on November 18,
2020. (
Id.
at 35). Indeed, at least one Plaintiff has already raised some of these complaints
in state court.
Ward
, CV2020-015285 (Super. Ct. of Ariz. Dec. 4, 2020) (dismissing the
Petition with prejudice); (Doc. 58-1 at 14, Ex. B). Dr. Ward clearly knew the basis of her
claim before December 2, 2020 but offers no reasonable explanation for the delay in
bringing this suit in federal court. When contesting an election, any delay is prejudicial,
but waiting until a month after Election Day and two days after certification of the election
is inexcusable.
See Kelly v. Penn.
, 2020 WL 7018314, at *1 (Pa. Nov. 28, 2020)
(“Petitioners failed to act with due diligence in presenting the instant claim” when they
waited until November 21 to sue to invalidate Pennsylvania’s election);
Kistner v. Simon
,
No. A20-1486, slip op. at 3–4 (Minn. Dec. 4, 2020);
see also, e.g., Ariz. Libertarian Party
v. Reagan
,
The Court does not find that the Arizona state election challenge deadline excuses delay on Plaintiffs’ part in these circumstances. See A.R.S. §16-673. As noted above, the facts underlying the suspected irregularities complained of were either known to Plaintiffs prior to Election Day or soon thereafter. Although Arizona electors may have a deadline by which to file election contests in Arizona state court, Plaintiffs here opted to file their federal constitutional challenges in federal court. The exhibits to the Complaint confirm that the events complained of occurred on or before Election Day. Accordingly, the Court rejects Plaintiffs’ self-serving statement that they did not know the basis for their claims before December 2, 2020. The documents they submit with their Complaint plainly shows the contrary is true, and the delay—which has resulted in a rush by this Court and Defendants to resolve these issues before the Electoral College meeting deadline of December 14, 2020—is unreasonable.
The second part of the laches test—prejudice—is also unquestionably met. First,
the prejudice to the Defendants and the nearly 3.4 million Arizonans who voted in the 2020
General Election would be extreme, and entirely unprecedented, if Plaintiff were allowed
to have their claims heard at this late date.
SW Voter Registration Educ. Project v. Shelley
,
Second, the challenges that Plaintiffs assert quite simply could have been made weeks ago, when the Court would have had more time to reflect and resolve the issues. “Unreasonable delay can prejudice the administration of justice by compelling the court to steamroll through . . . delicate legal issues in order to meet election deadlines.” Arizona Libertarian Party , 189 F. Supp. 3d at 923 (quotation marks and citations omitted). Plaintiffs offer no reasonable explanation why their claims were brought in federal court at this late date. Their delay and the resulting prejudice bars their claims by laches.
E. Mootness
Defendants also argue that this case is moot. (Docs. 38 at 5; 40 at 22). The Court
agrees. “Mootness is a jurisdictional issue, and ‘federal courts have no jurisdiction to hear
a case that is moot, that is, where no actual or live controversy exists.’”
Foster v. Carson
,
Plaintiffs request an injunction that (a) enjoins Governor Ducey from transmitting the certified results, (b) orders Defendants to “de-certify” the election results, (c) nullifies votes tabulated by uncertified machines, (d) declares that illegal ballot fraud occurred in violation of the Electors and Elections Clauses and the Fourteenth Amendment’s Due Process and Equal Protections Clauses, (e) mandates a manual recount or statistical sampling of all mail-in and absentee ballots, and (f) allows Plaintiffs to seize and inspect voting hardware and software as well as security camera recordings “of all rooms used in Maricopa County” from November 3 to 4. (Doc. 1 at ¶ 145).
Obviously, the Court cannot enjoin the transmission of the certified results because they have already been transmitted. (Doc. 40 at 4). Plaintiffs’ counsel orally argued that Defendants had the power to de-certify the election under 3 U.S.C. § 6. Nothing in that statute authorizes this Court to de-certify the results. The manner provided to contest elections under Arizona law requires election contest claims to be brought, “in the superior court of the county in which the person contesting resides or in the superior court of Maricopa County.” A.R.S. § 16-672. Therefore, if de-certification were possible, it would only be possible through an action brought in Arizona superior court. In other words, this Court has no power to de-certify the results. But even assuming the Court were able to grant the extraordinary relief requested, ordering Governor Ducey to de-certify the election, such relief would necessarily run afoul of 3 U.S.C. § 6 by ignoring Arizona law. In this instance, the Court cannot allow Plaintiffs to circumvent both federal and Arizona law.
Because this Court cannot de-certify the results, it would be meaningless to grant
Plaintiffs any of the remaining relief they seek.
See Wood v. Raffensperger
, 2020 WL
7094866, at *6 (11th Cir. Dec. 5, 2020) (“[I]t is not possible for us to delay certification
nor meaningful to order a new recount when the results are already final and certified.”);
King
,
F. Failure to State a Claim
“A motion to dismiss a complaint or claim ‘grounded in fraud’ under Rule 9(b)
[15]
for failure to plead with particularity is the functional equivalent of a motion to dismiss
under Rule 12(b)(6) for failure to state a claim.”
Vess v. Ciba-Geigy Corp. USA
, 317 F.3d
1097, 1107 (9th Cir. 2003). In a Rule 12(b)(6) context, courts must consider all well-
pleaded factual allegations as true and interpret them in the light most favorable to the
plaintiff.
Schlegal v. Wells Fargo Bank, NA,
720 F.3d 1204, 1207 (9th Cir. 2013).
Dismissal is proper when there is either (1) a lack of a cognizable legal theory or (2)
insufficient facts to support a cognizable legal claim.
Conservation Force v. Salazar
, 646
F.3d 1240, 1242 (9th Cir. 2011),
cert. denied, Blasquez v. Salazar
,
When pleading allegations concerning fraudulent conduct, Rule 9(b) requires
something more than Rule 8: particularity.
Ashcroft v. Iqbal
,
Moreover, “claims of fraud or mistake . . . must, in addition to pleading with
particularity, also plead plausible allegations. That is, the pleading must state enough facts
to raise a reasonable expectation that discovery will reveal evidence of the misconduct
alleged.”
Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc
.,
Establishing the plausibility of a complaint’s allegations is a two-step process that
is “context-specific” and “requires the reviewing court to draw on its judicial experience
and common sense.”
Iqbal
,
Advancing several different theories, Plaintiffs allege that Arizona’s Secretary of
State and Governor conspired with various domestic and international actors to manipulate
Arizona’s 2020 General Election results allowing Joseph Biden to defeat Donald Trump in
the presidential race. The allegations they put forth to support their claims of fraud fail in
their particularity and plausibility. Plaintiffs append over three hundred pages of
attachments, which are only impressive for their volume. The various affidavits and expert
reports are largely based on anonymous witnesses, hearsay, and irrelevant analysis of
unrelated elections. Because the Complaint is grounded in these fraud allegations, the
Complaint shall be dismissed.
Vess
,
Plaintiffs first “describe specific violations of Arizona law” to support their fraud
claims. In doing so, they attach declarations from poll watchers that observed election
officials during the November General Election. (Doc. 1 ¶¶ 46–53). As Intervenor-
Defendant Maricopa County points out, these are the only declarants offered by Plaintiffs
with first-hand observation of the election administration. (Doc. 36 at 4). But these four
declarants do not allege fraud at all. (
See
Doc. 1-10 at 18–24). Instead, they raise
objections to the manner and process by which Arizona election officials matched
signatures on absentee ballots (Doc. 1 ¶¶ 46–48); to the process and role assigned to poll
referees in settling unresolved disputes between adjudicators (
Id.
at ¶ 49); to “irregularities”
with the voting machines on Election Day and before (
Id.
at ¶¶ 50–52); and to the
certification of the Dominion voting system on November 18, 2020 (
Id.
at ¶ 53). These
objections to the manner in which Arizona officials administered the election cannot serve
to overturn the results of the 2020 presidential election in Arizona because they fail to
present evidence that supports the underlying fraud claim. At most, these are the type of
“garden variety election irregularities” federal courts are “not equipped nor empowered to
supervise . . . .”
Griffin v. Burns
,
Plaintiffs next argue that they have expert witnesses who can attest to widespread voter fraud in Arizona. As an initial matter, none of Plaintiffs’ witnesses identify Defendants as committing the alleged fraud, or state what their participation in the alleged fraudulent scheme was. Instead, they allege that, absentee ballots “ could have been filled out by anyone and then submitted in the name of another voter,” “ could be filled in by third parties to shift the election to Joe Biden,” or that ballots were destroyed or replaced “with blank ballots filled out by election workers, Dominion or other third parties.” (Doc. 1 ¶¶ 54–58) (emphasis added). These innuendoes fail to meet Rule 9(b) standards. But perhaps more concerning to the Court is that the “expert reports” reach implausible conclusions, often because they are derived from wholly unreliable sources.
Plaintiffs’ expert Mr. William Briggs (“Briggs”), for example, concludes that “troublesome” errors by Arizona election officials “involving unreturned mail-in ballots [] are indicative of voter fraud” and that the election should consequently be overturned. (Doc. 1 at ¶ 54). Briggs relies on data provided by an unknown person named “Matt Braynard,” a person who may or may not have tweeted a “Residency Analysis of ABS/EV Voters” on his Twitter account on November 20, 2020 (Doc. 1-2 at 14, Ex. 2); ( Id. at 52, Ex. 3). Apart from a screenshot of Mr. Braynard’s tweets that day, Plaintiffs offer nothing further about Mr. Braynard’s identity, qualifications, or methodologies used in conducting his telephone “survey.” But according to the Briggs’ report, Mr. Braynard conducted his survey of unknown size and to unknown persons in Georgia, Michigan, Wisconsin, Arizona, and Pennsylvania regarding absentee ballots, and his “findings” were conveyed to Mr. Briggs. ( Id. ) In concluding that there were “clearly a large number of troublesome ballots in each state,” Mr. Briggs assumed Mr. Braynard’s “survery [sic] respondents [were] representative and the data [was] accurate.” ( Id. ) This cavalier approach to establishing that hundreds of thousands of Arizona votes were somehow cast in error is itself troublesome. The sheer unreliability of the information underlying Mr. Briggs’ “analysis” of Mr. Braynard’s “data” cannot plausibly serve as a basis to overturn a presidential election, much less support plausible fraud claims against these Defendants.
The Complaint is equally void of plausible allegations that Dominion voting
machines were actually hacked or compromised in Arizona during the 2020 General
Election. Plaintiffs are clearly concerned about the vulnerabilities of voting machines used
in some counties across Arizona and in other states. They cite sources that attest to
knowledge of “well-known” vulnerabilities, have included letters from concerned citizens,
Arizona elected officials, and United States senators. Plaintiffs even attach an affidavit of
an anonymous witness with connections to the late Venezuelan dictator Hugo Chavez
claiming to be privy as to how officials in Venezuela rigged their elections with the help
of a voting systems company whose software “DNA” is now used in voting machines in
the United States. (Doc. 1-1, Ex. 1). These concerns and stated vulnerabilities, however,
do not sufficiently allege that any voting machine used in Arizona was in fact hacked or
compromised in the 2020 General Election. Rather, what is present is a lengthy collection
of phrases beginning with the words “could have, possibly, might,” and “may have.”
(Doc. 1 ¶¶ 8, 53, 55, 57, 60, 66, 77, 88, 91, 108, 109, 122). To lend support to this theory,
Plaintiffs offer expert Russell Ramsland, Jr., who asserts there was “an improbable, and
possibly impossible
spike in processed votes” in Maricopa and Pima Counties at 8:46 p.m.
on November 3, 2020. (Doc. 1 ¶ 60); (Doc. 1-9, Ex. 17) (emphasis added). He suggests
that this spike “could easily be explained” by presuming that Dominion “pre-load[ed]
batches of blank ballots in files such as Write-Ins or other adjudication-type files then
casting them almost all for Biden using the Override Procedure . . . .” (Doc. 1-9 at 9, Ex.
17). This scenario is conceivable. However, Defendant Hobbs points to a much more
likely plausible explanation: because Arizona begins processing early ballots before the
election, the spike represented a normal accounting of the early ballot totals from Maricopa
and Pima Counties, which were reported shortly after in-person voting closed. (Doc. 40 at
17–18). Thus, the Court finds that while this “spike”
could
be explained by an illicit
hacking of voting machinery in Arizona, the spike is “not only compatible with, but indeed
was more likely explained by, lawful, unchoreographed” reporting of early ballot
tabulation in those counties.
See Iqbal
,
Because Plaintiffs have failed to plead their fraud claims with particularity and because the Complaint is grounded in these claims, it must be dismissed.
G. Motion for TRO and Preliminary Injunction There are multiple independent grounds upon which to dismiss Plaintiffs’ Complaint. Accordingly, it is not necessary to reach the merits of Plaintiffs’ requests for a temporary restraining order and preliminary injunction and the Court will therefore only briefly addresses those Motions here.
“The standard for issuing a temporary restraining order is identical to that for issuing
a preliminary injunction.”
Taylor-Failor v. Cty of Hawaii
,
Plaintiffs simply cannot establish they have a likelihood of success on their claims. Plaintiffs face serious jurisdictional impediments in bringing their claims to federal court at the eleventh hour. These insurmountable legal hurdles are exacerbated by insufficiently plead allegations of fraud, rendered implausible by the multiple inadmissible affidavits, declarations, and expert reports upon which their Complaint relies.
Furthermore, granting Plaintiffs the injunctive relief they seek would greatly harm the public interest. As stated by Defendant Hobbs, “the requested relief would cause enormous harm to Arizonans, supplanting the will of nearly 3.4 million voters reflected in the certified election results and potentially imperiling Arizona’s participation in the Electoral College. It would be more difficult to envision a case in which the balance of hardships would tip more strongly against a plaintiff.” (Doc. 40 at 24). The Court agrees. The significant weight of these two Winters factors requires that the Court deny Plaintiffs’ requests for injunctive relief. [18]
III. Conclusion
Not only have Plaintiffs failed to provide the Court with factual support for their extraordinary claims, but they have wholly failed to establish that they have standing for the Court to consider them. Allegations that find favor in the public sphere of gossip and innuendo cannot be a substitute for earnest pleadings and procedure in federal court. They most certainly cannot be the basis for upending Arizona’s 2020 General Election. The Court is left with no alternative but to dismiss this matter in its entirety.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Governor Doug Ducey, Secretary of State Katie Hobbs, and Intervenor Defendants Maricopa County Board of Supervisors and Adrian Fontes’ Motions to Dismiss the Complaint (Docs. 36, 38, and 40) are GRANTED for the reasons stated herein.
IT IS FURTHER ORDERED that all remaining pending motions (Docs. 14, 62, 65 and 66) are denied as moot, and the hearing on Plaintiffs’ TRO and Preliminary Injunction set for December 10, 2020 is vacated .
IT IS FINALLY ORDERED that this matter is dismissed, and the Clerk of Court is kindly directed to terminate this action.
Dated this 9th day of December, 2020.
Honorable Diane J. Humetewa United States District Judge
Notes
[1] Ariz. Sec’y of State, Summary of Hand Count Audits–2020 General Election (Nov. 17, 2020), https://azsos.gov/election/2020-general-election-hand-count-results.
[2] Ariz. Sec’y of State, State of Arizona Official Canvass, https://azsos.gov/sites/default/files/2020_General_State_Canvass.pdf.
[3] Under 3 U.S.C. § 5, if a state enacts and applies procedures to decide election controversies before election day, and a decision regarding a contested election is made at least six days before the electors’ meetings, then the decision is conclusive and will apply in counting the electoral votes. That deadline, referred to as the “safe harbor” deadline, was December 8, 2020, as the Electoral College will meet on December 14, 2020. See 3 U.S.C. § 7.
[4] The Arizona Democratic Party sought intervention under theories of permissive joinder. 28 While the Court did not believe the Motion was inappropriate, the Court did not find their presence necessary to this lawsuit and therefore denied the Motion to Intervene.
[5] While the Electors Clause and Elections Clause are separate Constitutional provisions,
they share “considerable similarity.”
Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n
,
[6] A.R.S. § 16-507(B) in its entirety reads: “Presidential electors, which, shall be enclosed in a bracketed list and next to the bracketed list shall be printed in bold type the surname
[9] Having established that the Court does not have jurisdiction over Plaintiffs’ Counts One through Three, the Court will decline to exercise supplemental jurisdiction over Count Four, which pleads no federal cause of action and is entirely based on alleged fraud under Arizona law.
[10] Judge Randall H. Warner of the Maricopa County Superior Court addressed Ward’s 27 allegations of election misconduct. First, Ward argued that there was an insufficient opportunity to observe the actions of election officials. The State Court dismissed that 28 claim as untimely, holding that “[t]he observation procedures for the November general election were materially the same as for the August primary election, and any objection to
[12] The Court finds that the first factor is not relevant to the facts alleged herein.
[13] These include objections regarding poll watchers’ ability to observe ballot counting, issues related to the manner and process by which Arizona election officials matched signatures on absentee ballots (Doc. 1 at ¶¶ 46–48); issues related to the process and role assigned to poll referees in settling unresolved disputes between adjudicators ( Id. at ¶ 49);
[14] As she does here, Ms. Ward’s state court action claimed that poll watchers were given 26 insufficient opportunity to observe the actions of election officials. Notably, the state court judge found this claim barred by the doctrine of laches, as Ms. Ward had failed to assert it 27 during a time when it could have been corrected. (Doc. 1-10 at 19 (“The observation procedures for the November general election were materially the same as for the August primary election, and any objection to them should have been brought at a time when any 28 legal deficiencies could have been cured.”).
[15] Although Plaintiffs strenuously argue that they can bring their Arizona election law- based claims in federal court because of the presence of federal allegations, they also boldly assert in their Reply that they need not follow the heightened pleading standard of Federal Rule of Civil Procedure 9(b) in pleading their fraud claims with particularity, because the federal rules are somehow abrogated by “controlling Arizona Supreme Court precedent.
[15] ” 27 (Doc. 44 at 23). Plaintiffs cannot have it both ways. Plaintiffs have not provided any authority that a state court decision can alter the pleading requirements in federal court 28 established by United States Supreme Court precedent and the Federal Rules of Civil Procedure.
[16] Plaintiffs’ often scattershot pleadings allege that “Defendants failed to administer the November 3, 2020 election in compliance with the manner prescribed by the Georgia legislature .” (Doc 2 at 6) (emphasis added). Plaintiffs also nonsensically include references to Wisconsin state statutes. (Doc. 1 at 33).
[17] Throughout their pleadings, Plaintiffs allege that there were “spikes” of votes for Joe 26 Biden that occurred in Arizona, which also occurred in other states that certified the election for Joe Biden, including Georgia, Wisconsin, Michigan, and Pennsylvania. 27 Regardless of whether these “spikes” shifting the vote majorities from President Trump to Vice President Biden occurred in other states, Plaintiffs have presented nothing to support the claim that these same “spikes” occurred in Arizona, where Biden never trailed Trump 28 in the vote tally.
[18] The Court will vacate the hearing on Plaintiffs’ TRO and Request for Preliminary Injunction scheduled for December 10, 2020.