Clerk of the Superior Court *** Electronically Filed *** T. Hays, Deputy 4/25/2021 4:00:34 PM Filing ID 12815721

1 Roopali H. Desai (024295) D. Andrew Gaona (028414) 2 Kristen Yost (034052) COPPERSMITH BROCKELMAN PLC 3 2800 North Central Avenue, Suite 1900 Phoenix, 85004 4 T: (602) 381-5478 5 [email protected] [email protected] 6 [email protected] 7 James E. Barton II (023888) Jacqueline Mendez Soto (022597) 8 BARTON MENDEZ SOTO PLLC 401 West Baseline Road, Suite 205 9 Tempe, Arizona 85253 T: (480) 550-5165 10 [email protected] [email protected] 11 Attorneys for Plaintiffs 12 13 14 ARIZONA SUPERIOR COURT 15 MARICOPA COUNTY 16 ARIZONA DEMOCRATIC PARTY, an ) No. CV2021-006646 Arizona political party and political action ) 17 committee; and , a ) qualified elector, 18 ) PLAINTIFFS’ PRE-HEARING Plaintiffs, ) MEMORANDUM 19 ) v. 20 ) ) (Assigned to The Hon. Christopher Coury) 21 KAREN FANN, in her official capacity as President of the ; WARREN ) ) (Evidentiary Hearing Set for April 26, 2021 22 PETERSEN, in his official capacity as Chairman of the Senate Judiciary Committee; ) at 11:00 AM) 23 KEN BENNETT, in his official capacity as ) the liaison of the Arizona Senate; and CYBER ) 24 NINJAS, INC., a Florida corporation, ) 25 Defendants. ) ) 26

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1 Introduction 2 This is a simple case that asks for simple relief: that agents of the Arizona Senate who 3 purport to be conducting an “audit” of Maricopa County’s election results follow state law and 4 ensure the safety and security of ballots, voting equipment, and voters’ personal information. 5 Plaintiff Arizona Democratic Party (“ADP”) has long sought assurances from the 6 Senate’s “liaison” that there were adequate procedures in place to serve these important interests 7 and satisfy state law. Yet even on the date of the return hearing before this Court, it was obvious 8 that Cyber Ninjas, Inc. and liaison Ken Bennett are making things up as they go along. 9 Defendants have repeatedly told the public that everything is safe and secure, illusory claims 10 given that a local reporter managed to walk around Veterans Memorial Coliseum unbothered on 11 four separate days, including coming into close contact with tabulators and voted ballots. See 12 Morgan Loew, Security lapses plague Arizona Senate’s election audit at State Fairgrounds, AZ 13 Family https://www.azfamily.com/news/investigations/cbs_5_investigates/security-lapses- 14 plague-arizona-senates-election-audit-at-state-fairgrounds/article_b499aee8-a3ed-11eb-8f94- 15 bfc2918c6cc9.html (last visited Apr. 25, 2021). Beyond that, elections experts – including 16 Arizona’s State Elections Director and subject matter experts on election audits, technology, and 17 security – have spoken with a unified voice; the Senate’s “audit” clearly doesn’t comply with 18 state law or important best practices for election audits.1 19 The truth is that there were never adequate measures, which will be apparent when Cyber 20 Ninjas produces documents it was ordered to produce today. In the meantime, Plaintiffs submit 21 the following in response to the Court’s request for briefing on (1) Plaintiffs’ standing, (2) 22 Defendants’ invocation of legislative immunity under article IV, pt. 2, §§ 6 and 7 of the Arizona 23 24 1 25 See Declarations of Sambo “Bo” Dul, Jennifer Morrell, and Ryan Macias, attached to the Amicus Curiae Brief of Secretary of State (the “SOS Declarations”). Plaintiffs 26 incorporate the SOS Declarations into this Pre-Hearing Memorandum by reference.

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1 Constitution, and (3) concerns about the separation of powers. Plaintiffs also explain why this 2 critical litigation is not barred by the equitable doctrine of laches. 3 Argument 4 I. Plaintiffs Have Standing to Bring This Action. 5 Plaintiffs have standing to pursue their claims against Defendants in this litigation of the 6 utmost statewide importance. 7 First, ADP is a membership organization that has standing because of its mission, work, 8 and the fact that its individual members would have standing in their own right to ensure that 9 their personal information is adequately protected, that their ballots are not tampered with, and 10 that they can rely on the security of the election system in their home county. [Fisher Decl. ¶¶ 4- 11 7, attached as “Exhibit 1”] To establish representational standing in federal court, an organization 12 must establish that “(a) its members would have standing to sue in their own right; (b) the 13 interests which the association seeks to protect are relevant to the organization’s purpose; and 14 (c) neither the claim asserted nor the relief requested requires the participation of individual 15 members.” Armory Park Neighborhood Ass’n v. Episcopal Cmty. Servs., 148 Ariz. 1, 6, (1985) 16 (citing Warth v. Seldin, 422 U.S. 490 (1975)). In Arizona, however, representational standing 17 “need not be determined by rigid adherence to the three-prong test of Warth, although those 18 factors may be considered.” Id. “The issue in Arizona is whether, given all the circumstances in 19 the case, the association has a legitimate interest in an actual controversy involving its members 20 and whether judicial economy and administration will be promoted by allowing representational 21 appearance.” Id. Indeed, representational standing advances “principles of judicial economy” 22 because it would allow “the issues to be settled in a single action rather than in a multitude of 23 individual actions because the relief sought is universal to all of its members and requires no 24 individual quantification by the court.” Id.; see also State v. Direct Sellers Ass’n, 108 Ariz. 165, 25 167 (1972) (trade association had standing); Arizona Ass’n of Providers for Persons with 26

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1 Disabilities v. State, 223 Ariz. 6, 13 ¶ 18 (App. 2009) (organizational plaintiff had standing on 2 behalf of its members who would be harmed by challenged rate reductions). 3 ADP has 816,745 registered members in Maricopa County, 688,946 of whom cast a ballot 4 in the 2020 General Election. [Fisher Decl. ¶¶ 5-6] That means 688,946 of ADP’s members have 5 ballots sitting at Veterans Memorial Coliseum subject to the prying eyes of biased, untrained 6 “auditors” who could be doing anything with them. Similarly, their personal information is also 7 in the hands of those same individuals. And their votes were already counted and should not be 8 subject to question or tampering based on a procedure-less audit process that doesn’t comply 9 with relevant provisions of Arizona law. 10 Second, ADP also has organizational standing in its own right because the pendency of 11 this sham “audit” and its efforts to vindicate the rights of its members has frustrated its purpose 12 as an organization and required it to divert precious resources away from its main mission to 13 investigate and counter the illegal activity related to the “audit.” E. Bay Sanctuary Covenant v. 14 Biden, ___ F.3d ___, 2021 WL 1220082, at *10 (9th Cir. Mar. 24, 2021) (“[A]n organization 15 has direct standing to sue where it establishes that the defendant’s behavior has frustrated its 16 mission and caused it to divert resources in response to that frustration of purpose.”). ADP is a 17 political party with the mission of electing Democrats in Arizona, growing the number of 18 registered Democrats in the state, and representing the interests of registered Democrats. [Compl. 19 ¶ 1; Fisher Decl. ¶ 4] As an organization, ADP is deeply concerned about the erosion of public 20 trust in our elections and efforts by Arizona’s Republican-led Legislature to make it harder to 21 vote. [Id. ¶ 7] After hearing increasingly troubling reports about the lack of formal procedures 22 for the so-called “audit” of the 2020 General Election (“Audit”) and conflicting reports about 23 Cyber Ninjas’ and its agents’ potential voter interrogations, ADP has diverted resources from its 24 primary objective. [Id. ¶¶ 8-9, 32] Among other things, ADP has devoted significant staff time 25 to field calls from concerned members, warn members of the impending crisis, and develop 26 “Know Your Rights” training in case its members become the target of improper tactics

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1 described in Cyber Ninjas’ statement of work. [Id.] In just the past few weeks, ADP has devoted 2 approximately 50 staff hours (totaling thousands of dollars) to investigating this issue and 3 communicating with its members to ensure they understand what is going on and can help protect 4 their own rights. [Id. ¶ 9] In addition, it has already spent tens of thousands of dollars in 5 attorneys’ fees to investigate and prosecute this litigation to prevent Defendants’ unlawful 6 conduct. [Id.] 7 Third, even if ADP somehow lacks standing (it doesn’t), Supervisor Gallardo has 8 individual standing as a qualified elector in Maricopa County with an individual right to ensure 9 the safety, security, and integrity of his ballot, personal information in his voter registration file, 10 and the machinery used to count that ballot. This is a right personal to him, one that can be 11 vindicated only through this litigation and by asking this Court to ensure that the audit complies 12 with all relevant provisions of the law and the sacrosanct nature of his secret ballot is protected. 13 See, e.g., McComb v. Superior Ct. In & For Cty. of Maricopa, 189 Ariz. 518, 522 (App. 1997) 14 (finding that electors who resided in a district with an unlawful ward-based voting structure had 15 standing to challenge the process). 16 Finally, if the Court has any lingering doubt about Plaintiffs’ standing, it may still hear 17 this action because standing in Arizona is prudential, not jurisdictional. Indeed, the Arizona 18 Constitution “does not require a party to assert an actual ‘case or controversy,’” Bennett v. 19 Brownlow, 211 Ariz. 193, 195 ¶ 14 (2005), which means that standing is a requirement that can 20 be waived by courts when appropriate. Cf. Sears v. Hull, 192 Ariz. 65, 71 ¶ 25 (1998) (courts 21 can “as a matter of discretion . . . waive the requirement of standing,” which they have done “in 22 cases involving issues of great public importance that are likely to recur.”); Rios v. Symington, 23 172 Ariz. 3, 5 n.2 (1992) (overlooking “potential standing issues” where a case involved “a 24 dispute at the highest levels of state government” related to the separation of powers); Goodyear 25 Farms v. City of Avondale, 148 Ariz. 216, 217 n.1 (1986) (overlooking potential standing issues 26 in case involving the constitutionality of a zoning ordinance). If any case merits the Court

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1 exercising its discretion to waive the standing requirement, it’s this one. As the Court has already 2 recognized, Plaintiffs’ Verified Complaint raises serious issues that go to the very heart of our 3 democracy, issues that should not go unremedied because of questions about standing. This is 4 no doubt a case of “great public importance”; it’s hard to imagine an action of an arm of state 5 government attracting more attention and scrutiny than the ongoing politically-driven “audit” 6 being carried out by biased conspiracy theorists. 7 II. Legislative Immunity Does Not Shield Defendants from Plaintiffs’ Claims. 8 Defendants contend that they enjoy absolute, unqualified immunity from any lawsuit 9 challenging their illegal conduct related to the Audit. Their legislative immunity defense stems 10 from two separate constitutional provisions: (1) article IV, pt. 2, section 6, which provides that 11 legislators “shall not be subject to any civil process during the session of the legislature,” and 12 (2) article IV, pt. 2, section 7, which provides that “[n]o member of the legislature shall be liable 13 in any civil or criminal prosecution for words spoken in debate.” Neither provision supports 14 Defendants’ position. Arizona courts “construe immunity provisions narrowly,” Doe ex rel. Doe 15 v. State, 200 Ariz. 174, 176 ¶ 4 (2001), and legislative immunity does not – as Defendants 16 suggest – broadly shield governmental defendants “from challenges to claimed illegal actions.” 17 State ex rel. Brnovich v. Arizona Bd. of Regents, 250 Ariz. 127 ¶ 28 (2020). 18 Defendants’ legislative immunity arguments must fail. First, Defendants have waived any 19 claim of immunity related to the Audit by actively using the court system to gain access to the 20 materials used in the Audit. Second, Section 6 immunity is only available to protect legislators 21 from legal process that would prevent them from attending the legislative session, and it certainly 22 doesn’t apply to private third parties like Bennett and Cyber Ninjas. Third, Section 7 immunity 23 from liability for “words spoken in debate” is narrow, and it cannot shield Defendants from an 24 action seeking to enjoin their unlawful official conduct. 25 26

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1 A. The Senators waived any claim of legislative immunity. 2 To begin, if any Defendants enjoy any form of legislative immunity (they don’t), any such 3 immunity has been waived with respect to the conduct of the Audit. President Fann has already 4 actively participated in three separate cases before this Court related to the validity of the 5 Subpoenas that drove the audit, and should not be permitted to use legislative immunity as both 6 sword and shield. 7 On December 21, 2020, President Fann was a plaintiff in this Court seeking to enforce 8 previous versions of the Subpoenas issued by the previous Legislature. Fann/Farnsworth v. 9 Maricopa County Board of Supervisors, et al., CV2020-016904. Judge Warner dismissed that 10 case because President Fann sought relief through the wrong procedural vehicle. But even before 11 that, on December 18, 2020, Maricopa County filed an action in this Court against President 12 Fann and other legislators seeking relief as against the Subpoenas. Maricopa County, et al. v. 13 Fann, et al., CV2020-016840. A second case filed against President Fann by Maricopa County 14 was consolidated with that action. Maricopa County, et al. v. Fann, et al., CV2021-002092. In 15 that consolidated case, President Fann and Senator Peterson actively litigated the case without 16 raising any claim of immunity even though the consolidated case was filed during the legislative 17 session. That fact – and the fact that the defendants were members of the Legislature – did not 18 preclude Judge Thomason from issuing his lengthy ruling on February 25, 2021 holding that the 19 Subpoenas were valid. This action arises out of – and is inextricably linked to – those 20 consolidated cases and Judge Thomason’s ruling. 21 Defendants’ claims of legislative immunity are twofold, and arise out of Section 6 and 22 Section 7. Both are privileges that – like any other – can be waived. Arizona courts apply 23 traditional principles of waiver to legislative privileges, and legislators “can waive the privilege 24 concerning a subject.” Arizona Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, 144 ¶ 48 25 (App. 2003). That is, Legislators waive legislative immunity on a subject by “either the express, 26 voluntary, intentional relinquishment of a known right or such conduct as warrants an inference

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1 of such an intentional relinquishment . . . established by evidence of acts inconsistent with an 2 intent to assert the right.” Am. Cont’l Life Ins. Co. v. Ranier Constr. Co., 125 Ariz. 53, 55 (1980). 3 It’s hard to imagine a more obvious “intentional relinquishment . . . of a known right” 4 than the Senators both filing litigation to enforce the earlier iteration of the Subpoenas and 5 actively defending litigation brought by Maricopa County seeking to avoid the enforcement of 6 the Subpoenas that gave the Senate access to the ballots, machines, and other information 7 currently being used as part of the “audit” without ever articulating an objection based on 8 legislative immunity. Yet having availed themselves of this Court to ensure that the Subpoenas 9 were legal, they now claim that the Court is powerless to remedy clear violations of law based 10 on how they intend to use the materials obtained in those same Subpoenas. See Bd. of Sup’rs of 11 Fluvanna Cty. v. Davenport & Co. LLC, 742 S.E.2d 59, 63 (Va. 2013) (“The first action 12 evidencing the Board’s voluntary waiver is its failure to assert the protection of legislative 13 immunity”); id. at 63-64 (“The action of the Board in filing its complaint, which initiated 14 litigation on matters surrounding its legislative actions, also supports a waiver of legislative 15 immunity”); cf. Smith v. Arizona Citizens Clean Elections Comm’n, 212 Ariz. 407, 410 ¶ 8 16 (2006) (holding that a “legislator may not seek the court’s intercession solely for the purpose of 17 keeping alive” the legislator’s own case, “then claim immunity from participating” in further 18 proceedings in the same matter). 19 B. Defendants are not immune under article IV, part 2, § 6. 20 Next, Defendants – including Cyber Ninjas – contend that they are all immune from any 21 civil action under Section 6, which provides that “[m]embers of the legislature shall be privileged 22 from arrest in all cases except treason, felony, and breach of the peace, and they shall not be 23 subject to any civil process during the session of the legislature, nor for fifteen days next before 24 the commencement of each session.” Ariz. Const. art. IV, pt. 2, § 6. Not so. 25 In the only reported case interpreting this constitutional provision, the Arizona Supreme 26 Court explained that the “purpose of the enactment and the ‘evil sought to be remedied’” was to

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1 ensure that state legislators are physically available to represent their constituents during 2 legislative session. Smith, 212 Ariz. at 410 ¶ 6. The court relied on “a similar provision in the 3 Federal Constitution . . . designed to avert an arrest, either criminal or civil, that would prevent 4 a legislator from attending session,” and explained that this privilege traditionally extended to 5 legal processes such as a trial subpoena or jury duty, “because such seizures of the person would 6 preclude a representative from doing his public duty.” Id.; see also Yuma Greyhound Park, Inc. 7 v. Hardy, 106 Ariz. 178, 179 (1970) (interpreting federal counterpart and explaining that “the 8 immunity is limited to arrest,” which historically often included civil arrests). Section 6 simply 9 doesn’t apply here. As detailed above, the Senator Defendants affirmatively invoked this Court 10 – while the Legislature was in session – to litigate the Subpoenas that gave rise to the “audit.” 11 Now that the materials requested in the Subpoena have been turned over, the Senators cannot 12 claim they are immune from a case arising out of those very Subpoenas. The sole purpose of this 13 action is to ensure that the auditors comply with Arizona law in an “audit” President Fann has 14 said doesn’t actually involve the Senate or any senators at all; nothing about that request 15 interferes with the Senators’ ability to participate in the legislative session. 16 Even if Section 6 protected the Senators from this action, its plain language makes clear 17 that the privilege extends only to “members of the legislature.” Indeed, the privilege is intended 18 to protect legislators from arrest or legal process that would prevent them from performing their 19 duties during legislative session, so there is no reason it would extend to anyone beyond 20 “members.” The privilege therefore doesn’t apply to Defendants Bennett and Cyber Ninjas – the 21 people carrying out the Audit and whose conduct Plaintiffs seek to enjoin. Because they are mere 22 contractors of “members of the Legislature,” this constitutional protection doesn’t extend to 23 them. See, e.g., State v. Beno, 341 N.W.2d 668, 676 (Wis. 1984) (interpreting nearly identical 24 provision in the Wisconsin constitution and holding: “[t]o accomplish this purpose of the 25 privilege it is not necessary that a legislator be allowed to claim the privilege if his or her aide is 26 subpoenaed. While a subpoena to testify directed at an aide may temporarily reduce the

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1 efficiency of a legislator’s office, it will not prevent a legislator from voting or participating in 2 legislative activities or representing the constituents.”). So too here. If the Cyber Ninjas and 3 Bennett are enjoined from conducting the Audit in violation of Arizona law, President Fann and 4 Senator Warren will still be able to represent their districts in the legislative session. 5 C. Defendants are not immune under article IV, part 2, § 7. 6 Defendants also claim immunity under Section 7, which protects legislators from liability 7 for their “words spoken in debate.” Ariz. Const. art. IV, pt. 2, § 7. This privilege “extends to 8 matters beyond pure speech or debate in the legislature,” but “only when such matters are an 9 integral part of the deliberative and communicative processes relating to proposed legislation or 10 other matters placed within the jurisdiction of the legislature, and when necessary to prevent 11 indirect impairment of such deliberations.” Arizona Indep. Redistricting Comm’n, 206 Ariz. at 12 137 ¶ 19 (quotations omitted); see also Gravel v. United States, 408 U.S. 606, 625 (1972) (“The 13 heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to 14 reach other matters, they must be an integral part of the deliberative and communicative 15 processes by which Members participate in committee and House proceedings.”). The privilege 16 does not extend to legislators’ “political” or “administrative” acts. Id. ¶ 18. 17 First, the Arizona Supreme Court recently made clear that this immunity is much 18 narrower than Defendants suggest. Legislative immunity “is extended to shield individual 19 officials from personal liability for their legislative acts.” State ex rel. Brnovich, 250 Ariz. ¶ 28 20 (citing Arizona Indep. Redistricting Comm’n, 206 Ariz. at 136-38 ¶¶ 15-19). Here, Plaintiffs are 21 suing Defendants in their official capacities for their unlawful conduct as part of the Audit. 22 Because Plaintiffs are “not suing officials for personal liability in their individual capacities . . ., 23 legislative immunity is inapplicable.” Id. 24 Second, contrary to Defendants’ arguments, the Audit is a purely administrative function, 25 not a “legislative act” for purposes of Section 7 immunity. As Judge Thomason noted [Compl. 26 Ex. 2], the Legislature has the power to enact “laws to secure the purity of elections and guard

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1 against abuses of the elective franchise,” Ariz. Const. art. VII, § 12, and legislative committees 2 have the power to conduct “investigations” and issue subpoenas. But there is no proposed 3 legislation related to the Audit, and having legislative authority to issue a subpoena and conduct 4 an audit does not mean those tasks are “an integral part of the deliberative and communicative 5 processes relating to proposed legislation.” Arizona Indep. Redistricting Comm’n, 206 Ariz. at 6 137 ¶ 19.2 To the contrary, performing the Audit of specific ballots is an administrative task, not 7 a traditional lawmaking function. See A.R.S. § 16-661, et seq. (providing procedures for recounts 8 that involve the judiciary and elections administrators). Even if the Senator Defendants claim 9 they are conducting the Audit “with an eye toward” legislation, the same could be said about 10 many administrative tasks. But legislative immunity “does not extend to cloak ‘all things in any 11 way related to the legislative process.’” State ex rel. Montgomery v. Mathis, 231 Ariz. 103, 122 12 ¶ 74 (App. 2012) (citation omitted). In Mathis, for example, the court of appeals held that the 13 legislative privilege did not apply to the IRC’s decision about hiring a mapping consultant, even 14 though IRC is a legislative body with constitutional authority to make those decisions, and even 15 though those “decisions are related to the legislative process and may facilitate the creation of 16 districts,” because “they do not in themselves bear the ‘hallmarks of traditional legislation by 17 reflecting a discretionary, policymaking decision.’” Id. at 123 ¶ 79. The same is true for the 18 Audit. In President Fann’s words, the Audit is supposed to do no more than “validate every area 19 of the voting process to ensure the integrity of the vote” in the General Election. Ariz. Senate 20 Republican Caucus, Press Release, https://www.azsenaterepublicans.com/post/arizona-senate- 21 hires-auditor-to-review-2020-election-in-maricopa-county (last visited April 24, 2021). Like the 22 administrative tasks in Mathis, even if the Audit may ultimately be “related to” or “facilitate” 23 legislation, the conduct of the Audit itself is not an act of legislation. For these reasons, 24 25 2 Judge Thomason’s limited ruling that these functions had a “legislative purpose” for 26 issuing a subpoena does not affect whether those functions are subject to legislative immunity.

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1 Defendants have no right to legislative immunity from declaratory and injunctive relief about 2 the legality of the Audit procedures. 3 Finally, even if the Senators are immune (they’re not), Defendants cannot credibly argue 4 that Bennett and Cyber Ninjas are immune under Section 7. Legislative immunity doesn’t 5 insulate every agent or independent contractor a legislator hires. To hold otherwise would allow 6 legislators to contract with third parties to violate the law and shield them from any liability. See 7 D.F. Bailey, Inc. v. GRW Engineers, Inc., 350 S.W.3d 818, 822–23 (Ky. Ct. App. 2011) (“We 8 believe that extending legislative immunity to an independent contractor hired to perform 9 services to a legislative body would lead to untenable results and create a slippery slope”). For 10 example, what if the State Senate hired a private security company to systematically violate the 11 rights of peaceful protestors outside legislative debates? Would the private companies be 12 immune from liability? Of course not. Courts would have jurisdiction to enjoin those illegal acts 13 by the private security company, even if the legislators who hired the private security company 14 were immune. See Kilbourn v. Thompson, 103 U.S. 168, 205 (1880) (only the congressmen were 15 immune from a suit brought by a witness who was unlawfully detained during a committee 16 hearing, but the sergeant-at-arms who carried out the arrest was not immune). 17 To be sure, the legislative privilege may apply to an agent of the Legislature in some 18 cases. In Gravel, for example, the federal “Speech or Debate” privilege (Section 7’s analog) 19 extended to a congressman’s aides and members of his staff to while helping the Senator carry 20 out legislative acts. It did so because “the day-to-day work of such aides is so critical to 21 the Members’ performance that they must be treated as the latter’s alter egos.” 408 U.S. at 616– 22 17. But extending the privilege to congressional staffers is a far cry from immunizing a private 23 contractor hired by the Republican-controlled Senate and funded mainly by far-right groups and 24 undisclosed individuals. [Compl. ¶¶ 35-38]; see Page v. Virginia State Bd. of Elections, 15 F. 25 Supp. 3d 657, 664 (E.D. Va. 2014) (“a legislative consultant” to the Republican Caucus of the 26 Virginia House of Delegates “and independent contractor paid by a political group, the House

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1 Republican Campaign Committee, has no grounds to claim that he is so critical to the 2 performance of the legislature that he should be treated as a legislative alter ego and extended 3 the benefit of legislative privilege.”). 4 Beyond that, the agent’s conduct must be part of a legislative act to be entitled to 5 immunity. In Arizona Indep. Redistricting Comm’n, the court of appeals found that the 6 legislative privilege covered IRC’s consultant, but only in performing the very tasks the court 7 considered “legislative,” including “preparing final congressional and legislative redistricting 8 plans,” which have the force of law. 206 Ariz. at 135, 138 ¶¶ 6, 22-23. In other words, the court 9 found that the legislative privilege applied when commissioners and their consultant were 10 actually “formulating a redistricting plan” (i.e., IRC’s “legislation”), but also recognized that the 11 “legislative privilege does not extend to cloak ‘all things in any way related to the legislative 12 process.’” Id. at 137 ¶ 18 (citation omitted). As detailed above, the Audit is not a legislative act 13 for purposes of Section 7. 14 In sum, Bennett and Cyber Ninjas are not the type of legislative agents (like aides and 15 staffers) who can invoke legislative immunity, and even if they were, they aren’t performing any 16 legislative acts. 17 III. Plaintiffs’ Requested Relief Doesn’t Disturb Separation of Powers. 18 Next, granting Plaintiffs the limited relief sought in this action – that the Senate and its 19 agents comply with longstanding provisions of Arizona law related to ballot security and election 20 integrity – does not violate the separation of powers as provided in Article III of the Arizona 21 Constitution. Instead, this case is a quintessential example of when the judiciary must exercise 22 its own constitutional power to: (1) declare on-going actions of state actors and their agents to 23 be illegal, and (2) enjoin the continued, willful violation of Arizona law. Both are judicial 24 powers. See Eastin v. Broomfield, 116 Ariz. 576, 582 (1977) (citation omitted). And neither 25 unduly interfere with the powers of the Legislature. 26

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1 When assessing separation of powers claims, courts must consider: (1) the nature of the 2 power being exercised; (2) the degree of control of another branch; (3) the purpose of the 3 legislation; and (4) the practical consequences of the action. State ex rel. Woods v. Block, 189 4 Ariz. 269 (1997). In Woods, the court held that the Legislature was exercising powers belonging 5 to the executive because after the Legislature created a council (enacting law) it retained control 6 of the council (executing the law). Id. at 276. On the other hand, in Citizens Clean Elections 7 Comm’n v. Myers, 196 Ariz. 516, 523-24 (2000), the court found no Article III violation because 8 the power at issue was Senate concurrence with a Governor’s decision to remove a 9 commissioner. Finding the power of concurrence, unlike that of removal, not an executive 10 power, the court upheld the provision of the Citizens Clean Elections Act calling for Senate 11 concurrence with a Governor’s removal order. Id. 12 The activity at issue in this case – the possession and manipulation of voted ballots and 13 dissemination of information in voter files – is commissioned by the Senate, but the mere 14 involvement of the Senate doesn’t make the conduct of the Audit immune from legal review. 15 The State raised a similar argument defending its de facto amendment of the Arizona Medical 16 Marijuana Act in State v. Maestas, 244 Ariz. 9, 12 ¶ 10 (2018). There, the State claimed that 17 because the Legislature has the power to enact laws concerning schools, voters could not restrict 18 its exercise of power in the face of a “textually demonstrable constitutional commitment of the 19 issue” to the Legislature. Id. The Arizona Supreme Court rejected this inherently-flawed 20 reasoning because “[a]dopting the State’s argument would mean that, notwithstanding the 21 VPA’s limitations on the legislature’s power, courts could not adjudicate any VPA challenge to 22 a law enacted in a subject area over which the legislature exercised power given to it by the 23 constitution,” and “would render the VPA meaningless.” Id. So too here. Even if the Senate 24 Judiciary Committee has the power to “audit” election results, Plaintiffs are merely asking the 25 Court to determine whether, in performing the “audit”, Defendants are complying with Arizona 26 laws governing security and integrity of ballots, voting equipment, and voter files. San Carlos

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1 Apache Tribe v. Superior Ct. ex rel. Cty. of Maricopa, 193 Ariz. 195, 211 ¶ 37 (1999) (“The 2 power to define existing law . . . and to apply it to facts rests exclusively within the judicial 3 branch.”). Contrary to Defendants’ position, Article III doesn’t shield any unlawful action from 4 judicial review just because it was directed by the Legislature. 5 In addition, State ex rel. Brnovich v. City of Tucson, 242 Ariz. 588 (2017) demonstrates 6 how the Woods test should be applied. The statute at issue there provides a vehicle for any sitting 7 legislator to direct the Attorney General to evaluate a municipality’s compliance with state law. 8 Id. In applying the first prong, the nature of the action, the Court found that “implementing the 9 law, disbursing appropriations, and enforcing legislative conditions on appropriations are 10 essentially executive functions.” Id. at 593. Here, determining whether the Senate’s contractor 11 is complying with laws related to handling ballots and information are essentially judicial 12 functions. The court in City of Tucson did not voice any concerns applying the third and fourth 13 prongs because 14 [t]he enactment itself suggests that the legislature’s apparent objective in S.B. 1487 was not to usurp executive or judicial authority but rather to require and incentivize 15 political subdivisions to comply with state law. Likewise, the practical 16 consequence of S.B. 1487 is to encourage compliance with state law, not to coerce, control, or interfere with executive powers or prerogatives. 17 18 Id. at 593. Similarly, this Court’s holding that the Senate’s contractors must comply with the 19 laws related to ballot handling and security doesn’t undermine the Legislature’s exercise of 20 power. To the contrary, it merely requires the Senate’s contractor to comply with state law. 21 Finally, in their special action petition to the Arizona Supreme Court, Defendants cited 22 Exxon Corp. v. Federal Trade Commission, 589 F.2d 582 (D.C. Cir. 1978), an excellent example 23 of the limits of applying the separation of powers doctrine to allow the Legislature to break the 24 law. There, the holders of trade secrets found themselves in a similar situation to Maricopa 25 County voters here—concerned that a reckless legislative body would not treat their confidential 26 documents as required by law. Id. The court explained that “courts will intervene to protect

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1 constitutional rights from infringement by Congress, including its committees and members.” 2 Id. at 590. Much like Judge Thomason’s ruling on the legislative subpoenas that initiated the so- 3 called “audit” here, the court in Exxon expressed confidence in the Legislature’s policies: 4 This court cannot assume that Congress will act irresponsibly in regulating or disclosing appellants' trade secrets. Barring the imminence of such disclosure, 5 appellants' constitutional rights are not in fact jeopardized by delivery of their 6 secrets to Congress. On this record there is no justification for this court to interfere with the operations of the legislative branch. 7 8 Id. But unlike the court in Exxon, this Court need not make any assumption about how the 9 Arizona Senate will act in securing what it received in response to the Subpoenas. Instead, the 10 Senate and its contractors have made plain that they don’t intend to comply with relevant 11 provisions of Arizona law. On the record before this Court, there is clear justification to require 12 compliance in its handling of ballots; that is, the Senate and its contractors have not demonstrated 13 any willingness to even create procedures that purport to comply with the law. 14 In short, it would be an unwarranted abrogation of the judiciary’s responsibility to enable 15 to Legislature to commission the possession and manipulation of ballots and grant access to 16 extensive personal identifying information in voter files without also ensuring that the 17 Legislature and its agents follow state law. Maestas, 244 Ariz. at 15 (Bolick, J. concurring) 18 (quoting The Federalist No. 78, at 430 (Alexander Hamilton) (Gideon ed., 2006)). 19 IV. Plaintiffs’ Claims Are Timely. 20 Last, the Court should reject any argument that Plaintiffs’ claims are barred by laches. 21 Laches is grounded on principles of fundamental fairness, Harris v. Purcell, 193 Ariz. 409, 414 22 ¶ 24 (1998), and it will bar a claim if there is an unreasonable delay that causes prejudice to the 23 defendant or the administration of justice. League of Ariz. Cities and Towns v. Martin, 219 Ariz. 24 556, 558 ¶ 6 (2009). But delay alone is not enough; “in determining whether the delay was 25 unreasonable, [courts] examine the justification for delay, including the extent of plaintiff’s 26 advance knowledge of the basis for challenge.” Id. (quotations and citations omitted).

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1 A. Plaintiffs did not unreasonably delay. 2 On February 26, 2021, Judge Timothy Thomason issued judgment in case CV 2020- 3 016840, the action over the validity of the Subpoenas. In declining to quash the Subpoenas, the 4 court stated that “[t]his is not to say that the Court does not have concern about the confidentiality 5 of the subpoenaed ballot information. The Elections Procedures Manual has carefully delineated 6 provisions providing for the security of ballots. The Manual, however, simply cannot be 7 reasonably read to prevent production of subpoenaed material to government officials, 8 particularly State legislators who are constitutionally charged with ensuring election integrity.” 9 Id. at 15. 10 The Senate assured the public it would take every measure in accordance with the law 11 and Judge Thomason’s ruling to protect the integrity of the election system and the materials, 12 including ballots and voter files, produced by the County in response to the Subpoenas. But it 13 turned out that wasn’t the case, as ADP only recently learned after trying and failing to get 14 information from the Senate. [Fisher Decl. ¶¶ 12-26] Multiple times between March 26 and April 15 19, ADP’s Executive Director had telephone calls with the Senate’s Audit “liaison,” Ken 16 Bennett. [Id. ¶¶ 12-21] ADP asked Bennett for the specific policies and procedures for the Audit, 17 and Bennett represented that he was working on developing them. [Id. ¶¶ 13, 17] It wasn’t until 18 April 19, 2021 – three days before Plaintiffs filed this lawsuit – that ADP learned Defendants 19 would not share any procedures, policies, plan, or schedule before the audit. [Id. ¶¶ 24-26] ADP’s 20 final call with Bennett also raised serious concerns about whether there are any policies and 21 procedures for maintaining the security and confidentiality of Democratic voters’ ballots, voter 22 registration files, and election equipment.3 [Id. ¶¶ 23, 26] Even more, Plaintiffs have learned 23 3 Despite Mr. Bennett’s repeated assurances of adequate security and protection for the ballots, 24 tabulation machines, and voter records, on the day before Maricopa County delivered materials to the Coliseum, the Senate’s last-ditch attempt to obtain security from the Maricopa County 25 Sheriff’s Office was rejected. Indeed, on April 20, 2021 – the day before materials were delivered 26 to the Coliseum – President Fann requested the Maricopa County Sheriff to provide six deputies and 24/7 security at the Coliseum for 20 days. In a letter to Sheriff Penzone, President Fann

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1 troubling facts in recent days, including that individuals have had unfettered access to the 2 Coliseum, that Defendants indeed lack any formal process for the Audit to ensure the integrity 3 of Arizona’s election system, and that the auditors (and their untrained, unidentified workers) 4 will have access to voter history, voter addresses, voter signatures, and other aspects of the voter 5 registration files. [Id. ¶¶ 27-35; see also SOS Declarations, which Plaintiffs incorporate into this 6 prehearing memorandum by reference.] 7 There has been no delay in filing this action, let alone an “unreasonable” one. Flynn v 8 Rogers, 172 Ariz. 62, 66 (1992). Plaintiffs filed this action only three days after learning the 9 Senate had no policies or safeguards for the Audit. A delay is reasonable when a party takes time 10 to investigate its claims and attempts to resolve the controversy, as Plaintiffs did here. See 11 McComb v. Superior Court in and for County of Maricopa, 189 Ariz. 518, 525 (App. 1997). 12 Laches doesn’t require that a lawsuit be filed immediately, and pre-litigation activity to resolve 13 the controversy should not serve as the basis for finding unreasonable delay. Id. at 526. ADP 14 tried to quell its concerns that ballots, voter information, tabulation machines, and other 15 equipment was at risk of misuse and damage by repeatedly requesting information from Bennett 16 showing that the audit would be conducted pursuant to the law. Only when it became clear that 17 no such procedures exist, at least not within the Senate’s knowledge and control, did Plaintiffs 18 file this action. Had they filed sooner, they would have been challenged on ripeness grounds. 19 20

21 admitted that “while the Senate has hired some security,” it “does not have all of the security capability to protect the election equipment and ballots on its own” [Fann Letter, attached as 22 “Exhibit 4”] Sheriff Penzone responded on the evening of April 20: “The responsibility and 23 safety of transfer from our custody to the State will be supported by the Maricopa County Sheriff’s Office. Once each transfer is complete, any security needs on State property must be 24 supplied at the facilitation and expense of the State.” [Penzone email, attached as “Exhibit 5”] 25 Based on this, and demands by former President Trump himself (as recently as today) for National Guard troops or state police to provide “large-scale” security for the audit, it only 26 recently became clear that there isn’t adequate security.

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1 B. There is no prejudice to the Senate or Cyber Ninjas 2 Even if Plaintiffs had unreasonably delayed (they didn’t), Defendants “must also prove 3 prejudice.” Sotomayor v. Burns, 199 Ariz. 81, 83, ¶ 8 (2000) (internal citation omitted). Here, 4 there will be no prejudice to Defendants in delaying the audit to ensure compliance with the law 5 because there is no deadline to complete the audit. See League of Ariz. Cities, 219 Ariz. at ¶ 8 6 (finding no harm to defendants when more than seven months remained from the filing of the 7 suit before plaintiff had to pay the disputed appropriation). In any event, Mr. Bennett has said 8 they have ample time and expect to finish earlier than planned. [Fisher Decl. at ¶ 22] 9 The Agreement between Cyber Ninjas and the Senate was entered on March 31, 2021. 10 [Cyber Ninjas Agreement at 1, attached as “Exhibit 2”] Neither the Agreement nor the Statement 11 of Work (“SOW”) provide a completion date for the work to be performed. As Bennett 12 represented to Fisher, “it will go until it’s done.” [SOW, attached as “Exhibit 3”, Fisher Decl. 13 at ¶ 22] Further, the work is to commence “on a date mutually agreeable to both [Cyber Ninjas] 14 and the [Senate] according to a schedule which is outlined via email.” The email has not been 15 produced by the Senate. But the SOW calculates the project schedule by the length of the phases, 16 not by specific dates. [SOW at § 9.] Given the lack of deadlines for completion of the work and 17 Plaintiffs’ requests for information before filing of this action, there is no harm to Defendants in 18 delaying the audit while this matter proceeds. 19 It is doubtful that Defendants would incur any costs if the Audit were delayed in light of 20 Defendants’ own statements that they are relying on volunteers to perform many of the audit 21 functions and contractors are receiving additional unknown funds from private third parties. In 22 any event, any expense incurred by Defendants is de minimis compared to the harm that would 23 be caused to the integrity of the election system and the breach of Constitutionally protected 24 information by Defendants’ failure to adhere to the law when conducting the audit. “Equity does 25 not encourage laches, and the doctrine may not be invoked to defeat justice but only to prevent 26

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1 injustice.” Beltran v. Razo, 163 Ariz. 505, 507 (App. 1990); see also State ex rel. Darwin v. 2 Arnett, 235 Ariz. 239, 245 ¶ 35 (App. 2014) (considering the public interest). 3 CONCLUSION 4 For the foregoing reasons, Plaintiffs respectfully request that the Court reject Defendants’ 5 requests to bar this lawsuit based on the procedural issues of standing, legislative immunity, 6 separation of powers, or laches. Even if this Court is inclined to rule in Defendants’ favor on one 7 or more of these issues, Plaintiffs respectfully request that the Court reach the merits of 8 Plaintiffs’ claims in the alternative in order to facilitate prompt resolution of all issues on appeal. 9 The voters of Maricopa County are entitled to the protection of Arizona’s laws when it 10 comes to the privacy, confidentiality, and security of their ballots, voter information, and election 11 equipment. 12 RESPECTFULLY SUBMITTED this 25th day of April, 2021.

13 COPPERSMITH BROCKELMAN PLC

14 By s/ Roopali H. Desai 15 Roopali H. Desai D. Andrew Gaona 16 Kristen Yost

17 BARTON MENDEZ SOTO PLLC 18 James E. Barton II Jacqueline Mendez 19 Attorneys for Plaintiffs 20 21 22 23 24 25 26

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1 FOREGOING FILED and COPY served via electronic 2 means on April 23, 2021, upon:

3 The Honorable Christopher Coury Maricopa County Superior Court 4 [email protected] 5 [email protected]

6 Kori Langhofer ([email protected]) Thomas Basile ([email protected]) 7 Statecraft 649 North Fourth Avenue, First Floor 8 Phoenix, AZ 85003 Attorneys for Fann Defendants 9 Alexander Kolodin ([email protected]) 10 Kolodin Law Group PLLC 11 3443 N. Central Avenue, Suite 1009 Phoenix, AZ 85012 12 Attorneys for Defendant Cyber Ninjas

13 Mary O’Grady ([email protected]) Joshua Bendor ([email protected]) 14 Emma Cone-Roddy ([email protected]) Osborn Maledon PA 15 Attorneys for Secretary of State 16 Katie Hobbs

17 Joseph E. La Rue ([email protected]) Karen Hartman-Tellez ([email protected]) 18 Maricopa County Attorney’s Office 225 W. Madison Avenue 19 Phoenix, AZ 85003

20 /s/ Sheri McAlister 21 22 23 24 25 26

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