EXHIBIT A
EXHIBIT A
1 Lewis Roca Rothgerber Christie LLP 201 East Washington Street, Suite 1200 2 Phoenix, AZ 85004 Bruce E. Samuels (State Bar No. 015996) Direct Dial: (602) 262-0216 3 Email: [email protected] 4 KBN Law, LLC 7830 W. Alameda Ave., Suite 103-301 Lakewood, CO 80226 5 (720) 773-1526 Mario Nicolais (pro hac vice motion forthcoming) 6 Email: [email protected] Attorneys for The Lincoln Project 7 SUPERIOR COURT OF ARIZONA 8 COUNTY OF MARICOPA 9 Donald J. Trump for President, Inc., a No. CV2020-014248 10 federal political committee; Republican National Committee, a THE LINCOLN PROJECT’S AMICUS 11 federal political party committee; and CURIAE BRIEF IN OPPOSITION TO the Arizona Republican Party, a PLAINTIFFS’ REQUESTED RELIEF 12 political party committee, (Assigned to the Honorable Daniel Kiley) 13 Plaintiffs, 14 v. 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 15 Katie Hobbs, in her official capacity as
the Secretary of State of Arizona; 16 Adrian Fontes, in his official capacity as the Maricopa County Recorder; and 17 Jack Sellers, Steve Chucri, Bill Gates, Clint Hickman, and Steve Gallardo, in 18 their respective official capacities as members of the Maricopa County 19 Board of Supervisors, 20 Defendants. 21 22 The Lincoln Project respectfully submits this amicus curiae brief in support of the 23 Plaintiffs’ request for declaratory, injunctive or mandamus relief. 24 INTRODUCTION 25 The Lincoln Project is an organization composed of Republicans, former 26 Republicans and conservatives dedicated to defeating candidates who have abandoned their
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1 constitutional oath, regardless of party. To achieve that purpose, The Lincoln Project has 2 created a broad coalition of supporters and volunteers across the country. Many of its 3 supporters live in Maricopa County, Arizona. During the recently conducted general 4 election, The Lincoln Project put its organization to work contacting, surveying, 5 communicating with and mobilizing voters in Arizona. To those ends, The Lincoln Project 6 invested significant resources in the State of Arizona, and, as the largest county in the state, 7 Maricopa County in particular. The relief sought by Plaintiffs threatens to undermine much 8 of the work The Lincoln Project engaged in and disenfranchise voters supporting their 9 mission within Arizona. While the Defendants represent a significantly different interest 10 than The Lincoln Project, any relief granted against them would have a significant and 11 irreparable impact on The Lincoln Project and its supporters in Arizona. 12 ARGUMENT 13 I. Background. 14 A. The Lincoln Project. 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 15 Founded less than a year ago, The Lincoln Project grew swiftly in prominence 16 among conservatives as it harnessed the sentiments of Republicans and former Republicans 17 disaffected by the current administration and Congressional enablers. Best known for 18 producing powerful videos and commercials, The Lincoln Project has supplemented those 19 efforts with a substantial field operation in targeted states, including Arizona. Maricopa 20 County has been a focal point for those efforts. 21 Founders of The Lincoln Project have run multiple Republican gubernatorial, 22 senatorial, and presidential campaigns throughout their careers. Several have longstanding 23 ties to Arizona. For example, John Weaver, Steve Schmidt and Reed Galen each held 24 leadership roles in Senator John McCain’s campaigns for U.S. Senate and President of the 25 United States.1 Other founders have had equally prestigious careers working as Republican
26 1 Our Team, The Lincoln Project, https://lincolnproject.us/team/ last visited Nov. 10, 2020.
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1 operatives. That experience has made them experts in reviewing voting patterns, 2 engagement models and turnout strategies. 3 The Lincoln Project put that expertise to work in Maricopa County over the past 4 several months. Field staff and organizers developed leadership teams in Maricopa County 5 working on various programs to educate voters on the process of voting and communicate 6 with those who supported The Lincoln Project’s preferred candidates. Furthermore, The 7 Lincoln Project spent substantial sums on media buys advocating for supporters to defeat 8 President Donald Trump; specifically, it spent more than $300,000 on television 9 commercials and in excess of $1,400,000 on digital advertisements and social media 10 platforms in Arizona markets. 11 On November 3, 2020, the efforts of The Lincoln Project and the votes cast by its 12 supporters helped defeat Trump’s re-election efforts in a full, free and fair election. Now 13 Plaintiffs seek to undermine that result by both subverting the will of the people and 14 contravening the rule of law. 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 15 B. Traditional Republican history of expanding voting rights and access to the ballot. 16 Beginning with the Republican Party’s first president, and The Lincoln Project’s 17 namesake, the Republican Party historically fought to expand equal rights, including at the 18 ballot box. In the aftermath of the Civil War, Republicans sponsored and passed three 19 constitutional amendments during Reconstruction: the Thirteenth Amendment (prohibiting 20 slavery), the Fourteenth Amendment (barring states from denying equal protection of the 21 laws), and the Fifteenth Amendment (dictating that the right to vote could not be denied on 22 the basis of race). A half century later, Republicans were critical to passing the Nineteenth 23 Amendment (prohibiting disenfranchisement based on sex). 24 These efforts by traditional Republicans stemmed in great part from President 25 Abraham Lincoln’s most famous edict “that government of the people, by the people, for 26
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1 the people, shall not perish from the earth.”2 It is the most solemn duty of every citizen, a 2 tenet of traditional Republican values and a guiding principle for The Lincoln Project. 3 It is in that proud tradition that The Lincoln Project engaged in their efforts to help 4 educate and inform Arizonans who cast their ballots on November 3rd. It is in that tradition 5 of expanding access to the ballot that The Lincoln Project files this amicus curiae brief in 6 opposition to Plaintiffs’ requested relief.
7 II. Effect of Plaintiffs’ Request on Government “By the People, For the People” and the Rule of Law. 8 The request for relief by the Plaintiffs – to halt canvassing and certification of all 9 votes pending the review of, at most, 180 potential erroneous overvote ballots – not only 10 undermines the principle of government “by the people, for the people” but also the rule of 11 law principles fundamental to the conservative belief structure held by supporters of The 12 Lincoln Project. 13 The right to vote is fundamental to a democracy. It is the defining feature of a 14
201 East Washington Street, Suite 1200 Phoenix, AZ 85004 government “by the people” – the right for the people to select public officials by exercising 15 the right to vote. Undermining that right presents a threat not just to an instant election, but 16 to the democracy which relies on the right. Yet that is exactly what Plaintiffs’ request for 17 relief entails. 18 In a record year for voter turnout in Arizona, Joe Biden received 1,648,642 votes to 19 the 1,633,896 for Trump.3 As reported by the Arizona Republic, more than 32,000 voters 20 left their presidential ballot blank and 50,293 voted for the Libertarian candidate Jo 21 Jorgenson even though the state has only 38,385 registered Libertarians.4 The Lincoln 22
23 2 Abraham Lincoln Online, The Gettysburg Address, http://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm last visited Nov. 24 10, 2020. 3 2020 General Election, State of Arizona Secretary of State, 25 https://results.arizona.vote/#/featured/18/0 last visited Nov. 10, 2020. 26 4 More than 32,000 in Arizona voted but left the presidential race blank. That’s significant, The Arizona Republic, November 6, 2020.
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1 Project believe that many of the undervotes and additional Libertarian votes were a direct 2 result of its efforts and likely derived from Republicans, former Republicans and 3 conservative unaffiliated voters. Yet the Plaintiffs wish to stop the Defendants from 4 canvassing or certifying those votes.5 5 If Plaintiffs’ request were limited to counting every vote, including an adjudication 6 and tabulation of the alleged ballots with an overvote defect, it would present a far different 7 case. The Lincoln Project supports efforts to count every ballot cast. However, that is not 8 the main object of the Verified Complaint. To the contrary, it is the rest of the votes – those 9 that delivered an electoral victory to Biden – that Plaintiffs essentially would invalidate. 10 While Plaintiffs alleged that “potentially thousands” of apparent overvotes were 11 improperly rejected,6 Defendants have stated that only 180 votes were potentially affected.7 12 That is in comparison to the 165,860 cast in person on Election Day8 and the 2,045,229 13 presidential ballots voted in total across Maricopa County.9 Effectively, Plaintiffs ask this 14 Court to disenfranchise more than two million Arizonans in Maricopa County, and more 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 15 than 3.3 million across that state, over potential problems in 180 ballots. Plaintiffs’ 16 argument effectively boils down to if those votes are not counted, no votes should be 17 counted. They would turn Lincoln’s quote on its head and require government by “none of 18 the people.” 19 https://www.azcentral.com/story/opinion/op-ed/joannaallhands/2020/11/06/thousands- 20 arizona-voters-refused-choose-trump-biden-jorgensen/6194635002/ last visited Nov. 10, 2020. 21 5 Verified Complaint, p. 17, Demand for Relief § C(i). 22 6 Id ¶ 2. 7 Roberts, Laurie, Trump’s lawsuit in Arizona is over, at most, 180 votes. This is a joke, 23 right?, The Arizona Republic, November 9, 2020, https://www.azcentral.com/story/opinion/op-ed/laurieroberts/2020/11/09/trumps-claim- 24 fraud-arizona-amounts-most-180-votes/6229791002/ last visited Nov. 10, 2020. 25 8 Id. 9 Election Results, Maricopa County Elections Department, 26 https://recorder.maricopa.gov/electionresults/general2020.aspx last visited Nov. 10, 2020.
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1 Plaintiffs’ position is not only anti-democratic, but in clear contrast to the rule of law 2 principles that The Lincoln Project espouses. First and foremost, many of those principles 3 can be traced back to the country’s founders. As written in The Federalist #78 by Alexander 4 Hamilton, the “intention of the people” must be preferred over “the intention of their 5 agents.”10 In this instance, the intention of 3.3 million Arizonans should not be cast aside 6 over the statutory arguments that Plaintiffs make for additional review and adjudication of 7 the 180 ballots in question. 8 Second, rule of law principles require matters be individually adjudicated.11 While it 9 may be just to review the potentially erroneous overvote invalidations, it is not just to 10 subject the remaining 3.3 million votes to disenfranchisement in the interim. Such an 11 outcome is gross violation of the rights to vote and self-govern afforded the people of 12 Arizona.
13 III. Plaintiffs’ Complaint Represents a Concerted Plan to Undermine the Presidential Election Outcome. 14
201 East Washington Street, Suite 1200 Phoenix, AZ 85004 While taken by itself the Plaintiffs’ arguments in this matter may simply be 15 unpersuasive and overbroad, viewed in conjunction with similar complaints directed by 16 Trump, his campaign and enablers across the country paint the picture of a concerted plan 17 to undermine the outcome of the presidential election won by Biden on November 3, 2020. 18 First, post-election lawsuits brought by Trump or Trump-affiliated organizations 19 have been filed exclusively in states where Trump lost or is currently losing. These states 20 include Pennsylvania, Nevada, Georgia, Michigan and Arizona.12 Neither Trump nor 21
22 10 The Federalist Papers: No. 78, https://avalon.law.yale.edu/18th_century/fed78.asp last 23 visited Nov. 10, 2020. 11 Overview - Rule of Law, United States Courts, https://www.uscourts.gov/educational- 24 resources/educational-activities/overview-rule-law last visited November 10, 2020. 12 McCoy, Kevin, Slack, Donovan, Wagner, Dennis, Most Republican lawsuits 25 challenging election results in battleground states haven’t gone far, USA Today, Nov. 10, 2020 https://www.usatoday.com/story/news/politics/elections/2020/11/09/republican- 26 lawsuits-challenging-election-pennsylvania-arizona-nevada-havent-gone-far-heres- why/6227596002/ last visited Nov. 10, 2020.
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1 anyone associated with him or his campaign have filed similar suits in states he won or is 2 winning by narrow margins such as Florida, North Carolina or Ohio. This pattern makes it 3 apparent that the complaints are political in nature rather than a true attempt to vindicate the 4 rights of voters. 5 Second, the majority of claims have been brought either devoid of evidence, based 6 on incompetent evidence (e.g. hearsay) or grounded in pure speculation. This case is no 7 different. For example, the Declaration of Gina Swoboda is based solely on what she heard 8 from other individuals and not on any direct observation. Similarly, the Declaration of Colin 9 T. Willoughby relies on speculation that voters were confused. Yet Plaintiffs ask this Court 10 to jeopardize the votes of millions of Arizonans over such flimsy claims. 11 Third, alone, the complaints filed would not have an effect on the election outcome, 12 either within any one state or across the nation. For example, in Pennsylvania a challenge 13 has been issued regarding ballots that were received within a three-day window after 14 Election Day as ordered by the Pennsylvania Supreme Court. While Biden leads by more 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 15 than 45,000 votes in that state, the number of ballots received after Election Day appear to 16 be minimal,13 almost certainly less than 10,000 total. The total could not change the 17 outcome of the election within the state. In this action, the 180 ballots in question would 18 have no effect on the outcome of the race, either, even if all were cast in favor of Trump. He 19 would still lose Arizona. 20 Similarly, no individual lawsuit win by Trump or his allies in any one state would 21 change the outcome of the overall race. Given that Biden has won, or is winning, states 22 constituting 306 electoral votes and needs only 270 to win, Trump would need to convince 23 courts in multiple states to disenfranchise tens of thousands, even millions, of voters. This 24 seems exceedingly unlikely to happen.
25 13 Gorsengner, Michael, Examining the vote: Segregated ballots make minimal impact in Central PA count, November 9, 2020, https://local21news.com/news/local/examining-the- 26 vote-segregated-ballots-make-minimal-impact-in-central-pa-count last visited Nov. 10, 2020.
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1 Finally, the complaints filed across the country all seem to have the same goal: 2 casting doubt on the country’s electoral system, disenfranchising voters, invalidating the 3 will of the people, and attempting to sow discord in hope that friendly state legislators will 4 appoint slates of presidential electors amid the chaos. This is a plan even Trump’s own 5 attorneys have voiced concern over.14 However, it appears to be the same strategy followed 6 in this matter. While the number of votes in question could not change the outcome of the 7 race in Arizona, the lawsuit itself could engender the type of confusion, delay and 8 legitimacy concerns that would undermine the electoral process. Here, Plaintiffs’ efforts, 9 like their efforts in so many lawsuits across the country, appear directed at undermining the 10 statutory deadlines (in Arizona, December 1, 2020) put in place to certify the vote. 11 Furthermore, by keeping the remaining 3.3 million votes from being counted, if Plaintiffs’ 12 relief is granted, it could lead to the precise scenario where the state legislature attempts to 13 subvert the will of the people. This Court should not condone such options. 14 CONCLUSION 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 15 For the reasons argued above, The Lincoln Project respectfully urges this Court to 16 rule AGAINST the relief sought by the Plaintiffs. 17 DATED this 10th day of November, 2020.
18 LEWIS ROCA ROTHGERBER CHRISTIE LLP
19 By: /s/Bruce E. Samuels Bruce E. Samuels 20 KBN LAW, LLC 21 By: /s/Mario Nicolais 22 Mario Nicolais (pro hac vice motion forthcoming) 23 Attorneys for The Lincoln Project 24
25 14 Silver-Greenberg, Jessica, Abrams, Rachel, and Enrich, David, Growing Discomfort at Law Firms Representing Trump in Election Lawsuits, The New York Times, November 9, 26 2020, https://www.nytimes.com/2020/11/09/business/jones-day-trump-election- lawsuits.html last visited Nov. 10, 2020.
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1 Electronically filed this 10th day of November, 2020, and a copy emailed to: 2 Kory Langhofer 3 Thomas Basile StateCraft 4 649 N. 4th St. Phoenix, AZ 85003 5 [email protected] [email protected] 6 Attorneys for Plaintiffs
7 Brett Johnson Eric Spencer 8 Snell & Wilmer L.L.P. 400 E. Van Buren, Ste. 1900 9 Phoenix, AZ 85004 [email protected] 10 [email protected] Attorneys for Plaintiffs 11 Thomas P. Liddy 12 Emily Craiger Joseph I. Vigil 13 Joseph J. Branco Joseph La Rue 14 Maricopa County Attorney’s Office
201 East Washington Street, Suite 1200 Phoenix, AZ 85004 225 W. Madison St. 15 Phoenix, AZ 85003 [email protected] 16 [email protected] [email protected] 17 [email protected] [email protected] 18 Attorneys for Maricopa County Defendants
19 Sara R. Gonski Perkins Coie LLP 20 2901 N. Central Ave., Ste. 2000 Phoenix, AZ 85012 21 [email protected] Attorneys for Proposed Intervenor Arizona Democratic Party 22
23 24 25 26
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1 Roopali H. Desai D. Andrew Gaona 2 Kristen Yost Coppersmith Brockelman PLC 3 2800 N. Central Ave., Ste. 1900 Phoenix, Arizona 85004 4 [email protected] [email protected] 5 [email protected] Attorneys for Arizona Secretary of State Katie Hobbs 6
7 /s/Joye Allen 8 9 10 11 12 13 14 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 15 16 17 18 19 20 21 22 23 24 25 26
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