Plaintiffs' Pre-Hearing Memorandum
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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, Arizona 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 STEVE GALLARDO, 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 Arizona Senate; 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 {00545772.1 } 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 Katie Hobbs (the “SOS Declarations”). Plaintiffs 26 incorporate the SOS Declarations into this Pre-Hearing Memorandum by reference. {00545772.1 } - 1 - 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 {00545772.1 } - 2 - 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 {00545772.1 } - 3 - 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.