AFEC and APIA Motion to File Amici Curiae Brief in Support of Plaintiffs

1 Timothy A. La Sota, SBN 020539 TIMOTHY A. LA SOTA, PLC 2 2198 East Camelback Road, Suite 305 3 Phoenix, Arizona 85016 Telephone: (602) 515-2649 4 Email: [email protected] 5 Attorney for Amici Curiae Arizona Free Enterprise Club and Arizona Public 6 Integrity Alliance 7 SUPERIOR COURT OF ARIZONA 8 MARICOPA COUNTY

9 Donald J. Trump for President, Inc., a federal No. CV2020-014248 political committee; Republican National 10 ARIZONA FREE Committee, a federal political party committee; and ENTERPRISE CLUB 11 the Arizona Republican Party, a political party AND ARIZONA PUBLIC committee, INTEGRITY 12 ALLIANCE’S AMICI CURIAE BRIEF IN 13 Plaintiffs, SUPPORT OF PLAINTIFFS 14 v. (assigned to the Honorable 15 Daniel Kiley) Katie Hobbs, in her official capacity as the 16 Secretary of State of Arizona; Adrian Fontes, in his official capacity as the Maricopa County Recorder; 17 and Jack Sellers, Steve Chucri, Bill Gates, Clint 18 Hickman, and Steve Gallardo, in their respective official capacities as members of the Maricopa 19 County Board of Supervisors, 20 Defendants. 21 Amici Arizona Free Enterprise Club and Arizona Public Integrity Alliance submit 22 this brief in support of Plaintiffs’ request for declaratory, injunctive, or mandamus relief. 23 The Amici state their interest in this matter, as well as why they believe their input is 24 useful to this Court, in their Motion to File the Amici Curiae brief. 25

27 28 1

1 ARGUMENT

2 I. The Court Should Reject the Secretary’s Attempt to Avoid the Procedures 3 Outlined in the Elections Procedures Manual for Adjudicating Overvotes. 4 A. The elections procedures stated in the Elections Procedures Manual are law in Arizona. 5 The Arizona legislature has delegated to the Secretary the authority to “prescribe 6 rules to achieve and maintain the maximum degree of correctness, impartiality, 7 uniformity and efficiency on the procedures for . . . voting.” A.R.S. § 16-452(A). This is 8 done in consultation with each county board of supervisors or other county elections 9 10 official. Id. 11 The Secretary’s prescribed rules are compiled “in an official instructions and 12 procedures manual.” § 16-452(B). The procedures manual, i.e., the 2019 Elections 13 Procedures Manual, must be issued no “later than December 31 of each odd-numbered 14 year immediately preceding the general election” and must be approved by the governor 15 and the attorney general before it is issued. Id. Significantly, the Elections Procedures 16 Manual (“EPM”) “has the force of law” and “any violation of an EPM rule is punishable 17 as a class two misdemeanor.” Arizona Pub. Integrity All. v. Fontes, No. CV-20-0253- 18 AP/EL, 2020 WL 6495694, at *3 (Ariz. Nov. 5, 2020) (citing A.R.S. § 16-452(C)). 19 While the Secretary may view the procedures in the EPM as an obstacle to 20 convenience, the procedures are not merely advisory. They are the law. The Secretary 21 should be just as motivated as Plaintiffs to ensure the rules prescribed by her are enforced 22 as written. 23 24 B. The EPM unequivocally requires overvoted Election Day ballots be duplicated, and if voter intent can be determined, counted. 25 There can be no question the EPM requires that all ballots read by the tabulation 26 machine as an overvote (or blank or invalid) be adjudicated, and, so long as voter intent 27 28 2

1 can be determined—either by the unanimous agreement of the Ballot Duplication Board

2 or the Snag Board—duplicated and counted. To wit, the EPM expressly provides: 3 * “Over-voted ballots shall be sent to the Ballot Duplication Board (and 4 the Snag Board or officer in charge of elections for adjudication if needed), even if the voter correctly filled in the arrow or oval for other races on the 5 ballot. If voter intent can be determined, the ballot shall be duplicated and 6 counted.” EPM at 201–02 (emphasis added).

7 * “If a voter has consistently marked their ballot by circling the name of the candidates, or circling yes or no for issues, or placing an x, check mark, 8 punched hole, or other similar mark next to the voter’s choices, the 9 tabulation machine will read the ballot as blank or invalid. These blank ballots shall be sent to the Ballot Duplication Board.” EPM at 202 10 (emphasis added). 11 Importantly, the EPM does not recognize any circumstance in which its mandate 12 that overvoted or otherwise unreadable ballots cast be duplicated may be set aside. Nor 13 could it: A.R.S. § 16-621(A) requires that “[i]f any ballot . . . is damaged or defective so 14 that it cannot properly be counted by the automatic tabulating equipment, a true duplicate 15 copy shall be made of the damaged or defective ballot in the presence of witnesses and 16 substituted for the damaged or defective ballot.” (Emphasis added.) Any ballot means any 17 ballot, which means every ballot that is not readable by a tabulation machine must be 18 duplicated, and if voter intent can be determined, counted in every race. 19 20 C. The Secretary does not engage with the EPM’s requirements and 21 incorrectly argues there is no remedy for a violation of Arizona 22 election law. Of the parties in this litigation, the Secretary should be the primary voice 23 24 advocating for a complete and proper application of the procedures in the EPM.

25 However, the Secretary’s Motion to Dismiss utterly ignores the EPM. Indeed, the 26 Secretary’s Motion does not so much as mention the EPM. Instead, the Secretary argues 27 that either Plaintiffs’ lawsuit was filed too late or that there is no redress available for a 28 violation of Arizona’s substantive election law short of a post-canvass election contest 3

1 and makes sweeping attacks on the motives of Plaintiffs.1 (See Sec’y’s Mot. to Dismiss at

2 8–11.)

3 But this simply isn’t true: just over four years ago, a division of this Court held 4 that where evidence adduced at a preliminary injunction hearing showed that poll 5 workers had routinely failed to inform voters who voted in the wrong precinct that their 6 provision ballot would not be counted that voters who cast such wrong-precinct 7 provisional ballots were entitled to have their votes counted before the canvass. Jones v. 8 Reagan, No. CV 2016-014708 (Ariz. Superior Ct., Maricopa Cnty., Sept. 9, 2016). A 9 copy of the court’s order in Jones is attached as Exhibit 1 to this brief. And the court 10 found there was redress available pre-canvass: the court entered an injunction requiring 11 12 the counting of certain wrong-precinct ballots and forbidding the Maricopa County Board 13 of Supervisors from canvassing the results or delivering those results to the Arizona 14 Secretary of State until these provisional ballots were counted. Id. 15 Whether the Court determines that a remedy similar to the remedy in Jones is 16 appropriate here, it is beyond question that such a remedy has been afforded to litigants 17 seeking to vindicate the statutory and constitutional requirements governing elections in 18 19 Arizona. The Secretary’s argument to the contrary ignores her own EPM and the recent 20 practice in this court. 21 22 23 24 1 Indeed, the Secretary appears to have prejudged Plaintiffs’ complaints through a 25 robust public relations campaign to assuage any and all objections. See, e.g., Mark 26 Phillips, Arizona Secretary of State: We Won’t Need to Recount Presidential Results, ABC15.com (Last Updated, Nov. 6, 2020, 8:21 P.M.), https://bit.ly/38y9tcM; Maritza 27 Dominguez, Arizona Secretary of State Katie Hobbs Responds to Claims of Voter Interference on Gaggle Podcast, AZCentral.com (Nov. 11, 2020, 6:00 A.M.), 28 https://bit.ly/32RY7Nl. 4

II. The Court Should Reject the Secretary’s Weaponization of A.R.S. § 12- 1 349(A) to Chill Meritorious Claims Raising Irregularities in the 2020

2 Election. 3 The Secretary concludes her motion to dismiss by requesting sanctions against 4 Plaintiffs—to include attorneys’ fees and costs—because she claims they lack 5 “substantial justification” to ask this Court to enforce the EPM as written. (See Sec’y’s 6 Mot. to Dismiss at 12–13.) While the Secretary acknowledges the green-button issue may 7 have indeed resulted in overvotes (see id. at 13 (noting “180 total ‘overvotes’ cast in the 8 presidential race on Election Day in Maricopa County” and a number of overvotes “in 9 every other partisan candidate race on Election Day”); see also Pls.’ Pre-Hr’g Mem. at 3 10 (stating Maricopa County represented “electronic tabulators registered a total of 11,676 11 putative ‘overvotes’ in Election Day ballots, approximately 950 of which affect partisan 12 candidate races”)), the Secretary nonetheless threatens Plaintiffs with sanctions for 13 raising disenfranchisement concerns, which easily could be remedied by application of 14 15 the procedures the Secretary herself prescribes in the EPM. 16 This court should not permit the State of Arizona’s top elections official’s use of 17 A.R.S. § 12-349(A) and other litigation tactics to attempt to chill legitimate complaints 18 about irregularities in an election. Suing the government is already a daunting task for 19 most civil claimants. Ask any civil-rights plaintiff whether the playing field is equal. The 20 government has the benefit of financial resources, subject-matter expertise, and a general 21 presumption of credibility and correctness. But this is not enough for the Secretary. It 22 appears she would rather force Plaintiffs out of court—and avoid the Court’s review of 23 the merits altogether—by threating financial sanctions. While the Amici are doubtful this 24 litigation tactic will prove successful here, because of the merits of the underlying claims 25 and what is at stake, the Court should view the Secretary’s sanctions request with 26 skepticism and indignation. If the Secretary, who is charged with guaranteeing a 27 trustworthy and secure elections process in the state, is permitted to frighten litigants out 28 5

1 of court at the outset by the threat sanctions, it will significantly weaken a private check

2 on elections and elections officials in Arizona. This is particularly true in a case where

3 the Secretary tacitly admits—by making both a laches argument that Plaintiff’s lawsuit 4 was too late and a procedural argument that Plaintiffs may not get any relief before 5 canvass—there is real risk to private litigants in elections disputes of waiting too long to 6 file a lawsuit. As entities that file election and voting-rights litigation to enforce 7 Arizona’s election laws, Amici have a keen interest in calling out the Secretary’s 8 unexplainable and aggressive litigation posture to ensure it does not become the norm in 9 Arizona. 10 At bottom, all parties to this case should be aligned behind what Arizona law 11 12 mandates: the manual adjudication of all putative overvotes. Arguments to the contrary 13 are a distraction and only delay a final vote count for the 2020 election. 14 CONCLUSION 15 For the reasons articulated in this brief, Amici Arizona Free Enterprise Club and 16 Arizona Public Integrity Alliance respectfully urge this Court to GRANT the relief 17 sought by Plaintiffs and to DENY the Secretary’s request for sanctions. 18 RESPECTFULLY SUBMITTED this 11th day of November, 2020. 19

20 21 22 TIMOTHY A. LA SOTA, PLC

23 By: /s/ Timothy A. La Sota Timothy A. La Sota, SBN 020539 24 2198 East Camelback Road, Suite 305 25 Phoenix, Arizona 85016 Telephone: (602) 515-2649 26 Email: [email protected] 27 Attorney for Amici Curiae

28 6

1 I hereby certify that on November 11, 2020, I caused the foregoing document to was filed

2 with the Maricopa County Superior Court Clerk via the Turbo Court E-file system.

3 I hereby certify that on November 11, 2020, I caused the following parties or persons to 4 be served via email:

5 Kory Langhofer Thomas Basile 6 Statecraft 7 649 N. 4th St. Phoenix, AZ 85003 8 [email protected] 9 [email protected] Attorneys for Plaintiffs 10 Brett Johnson 11 Eric Spencer 12 Snell & Wilmer L.L.P. 400 E. Van Buren, Ste. 1900 13 Phoenix, AZ 85004 14 [email protected] [email protected] 15 Attorneys for Plaintiffs

16 Thomas P. Liddy 17 Emily Craiger Joseph I. Vigil 18 Joseph J. Branco 19 Joseph La Rue Maricopa County Attorney’s Office 20 225 W. Madison St. Phoenix, AZ 85003 21 22 [email protected] [email protected] 23 [email protected] [email protected] 24 [email protected] 25 Attorneys for Maricopa County Defendants

26 Sara R. Gonski 27 Perkins Coie LLP 2901 N. Central Ave., Ste. 2000 28 Phoenix, AZ 85012 7

[email protected] 1 Attorneys for Proposed Intervenor Arizona Democrat Party

2 Roopali H. Desai D. 3 Andrew Gaona 4 Kristen Yost Coppersmith Brockelman 5 PLC 6 2800 N. Central Ave., Ste. 1900 Phoenix, Arizona 85004 7 [email protected] 8 [email protected] [email protected] 9 Attorneys for Arizona Secretary of State Katie Hobbs 10

11 Bruce E. Samuels Lewis Roca Rothgerber Christie LLP 12 201 East Washington Street, Suite 1200 13 Phoenix, AZ 85004 [email protected] 14 15 Mario Nicolais KBN Law, LLC 16 7830 W. Alameda Ave., Suite 103-301 17 Lakewood, CO 80226 [email protected] 18 Attorneys for The Lincoln Project 19 /s/ Timothy A. La Sota 20 21 22 23 24

25 26 27 28 8

EXHIBIT 1 Ruling in Jones v. Reagan No. CV 2016-014708 Maricopa County Superior Court Michael K. Jeanes, Clerk of Court *** Filed ***

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

CV 2016-014708 09/09/2016

CLERK OF THE COURT HONORABLE JOSHUA D. ROGERS S. Ortega Deputy

CHRISTINE JONES, et al. JOSEPH KANEFIELD BRETT W JOHNSON

MICHELE REAGAN, et al. JAMES DRISCOLL-MACEACHRON

COLLEEN CONNOR KORY A LANGHOFER TIMOTHY A LASOTA ATTORNEY GENERAL COUNTY ATTORNEY CCC COURT ADMIN-CIVIL-CCC DOCKET-CIVIL-CCC

UNDER ADVISEMENT RULING

Following an evidentiary hearing on September 8, 2016, this Court took under advisement Plaintiff’s application for preliminary injunction. The Court has considered Plaintiff’s Motion for Temporary Restraining Order (With Notice) and Motion for Order Setting Hearing on Preliminary Injunction, the memoranda submitted in support thereof and in opposition thereto, and all of the evidence and testimony presented at the evidentiary hearing which took place on September 8, 2016. The Court’s findings are set forth below.

I. Factual Background

Arizona’s Primary Election was held on August 30, 2016. In the Republican primary race for Arizona’s Fifth Congressional District (“CD 5”), the two candidates with the most votes were Andrew Biggs and Christine Jones. The final count has these two candidates separated by a margin of nine votes out of a total of 50,447 votes cast between them. The Maricopa County Docket Code 926 Form V000A Page 1

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Board of Supervisors is scheduled to meet on September 9, 2016 at 10:30 a.m. in order to canvass the returns of the August 30, 2016 Primary Election and deliver the canvass to the Secretary of State.

Plaintiffs allege that the Maricopa County Recorder or her delegates have failed to comply with Arizona law in reviewing and processing certain early, provisional, and conditional provisional ballots cast during the August 30, 2016 Primary Election, which has caused those votes not to be counted. Plaintiffs have asked this Court to issue a preliminary injunction which would enjoin the Board of Supervisors from completing, certifying and delivering the official Maricopa County canvass until all votes required to be processed for voting in CD 5 are counted.

There are four general categories of improper conduct alleged by Plaintiffs: (1) the refusal to allow conditional provisional ballot voters to provide identification within five days after the Primary Election; (2) the rejection of early ballots of voters whose signature on the ballot affidavit purportedly did not match the signature on the voter’s registration form; (3) the rejection of unsigned early ballots by failing to provide an opportunity to cure the defect; and (4) the rejection of provisional ballots cast in the wrong precinct where election officials failed to inform voters that their votes would not be counted if they vote in the wrong precinct.

II. Analysis

A party seeking a preliminary injunction has the burden of proof to show: (1) a strong likelihood of success on the merits, (2) a possibility of irreparable injury if the injunction is not granted, (3) a balance of hardships weighing in his favor, and (4) public policy favoring the requested relief. TP Racing, L.L.L.P. v. Simms, 232 Ariz. 489, 495, ¶ 21, 307 P.3d 56, 62 (App. 2013) (citing Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (App. 1990). Each of these elements is discussed below.

A. A strong likelihood of success on the merits

As to each of the first three categories of conduct Plaintiffs allege to be unlawful in this case, the Court finds that Plaintiffs have failed to show a strong likelihood of success.

The Court recognizes that “ ‘voting is of the most fundamental significance under our constitutional structure.’ ” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). “It does not follow, however, that the right to vote in any manner … [is] absolute. Id. Instead, the States retain the power to regulate their elections. As the United States Supreme Court stated in Burdick, “[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; ‘as a practical matter, there must be a substantial regulation of

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elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ ” Id. (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). In other words, facilitating the right to vote necessitates express structures and procedures to ensure that this right is exercised fairly, honestly, and orderly. The Arizona Legislature has created this framework both through the establishment of the relevant statutory scheme, see A.R.S. § 16-101, et seq. and A.R.S. § 19-101, et seq., and, as part of that scheme, by empowering the Secretary of State to create a manual of necessary elections procedures, a manual which is then reviewed and approved by the attorney general and the governor. A.R.S. § 16-452 (2016).

Turning to the specific laws at issue in this case, on the claim that the Maricopa County Recorder has improperly refused to allow conditional provisional ballot voters to provide identification within five days after the Primary Election, Plaintiffs do not argue that the imposition of such a deadline is itself improper. Instead, the issue is merely whether the right deadline provided under the State of Arizona Elections Procedure Manual (the “Manual”) has been utilized by the Maricopa County Recorder. This issue is addressed only in the Manual, which provides in pertinent part:

Conditional Provisional Ballot for No Identification

If the elector does not provide identification as required by ARS § 16-579(A), the elector shall be issued a conditional provisional ballot. The conditional provisional ballot shall be placed in a provisional ballot envelope. The provisional ballot envelope shall indicate that the elector did not provide identification. The poll worker shall notify the elector that he or she must provide identification as required by ARS § 16-579(A) to the County Recorder or to an official deemed acceptable by the County Recorder. The poll worker shall provide the elector with instructions on how, when, and where the elector can provide proof of identification. The proof of identification must be received by the County Recorder's office by 5:00 p.m. on the fifth business day after a general election that includes an election for a federal office or 5:00 p.m. on the third business day after any other election for the provisional ballot to be processed and counted.

Manual p. 153.

Although the election at issue is not a “general election that includes an election for a federal office”, Plaintiffs nevertheless contend that the applicable deadline in this case is the “fifth business day” based upon the language of A.R.S. § 16-401. The Court does not agree.

A.R.S. § 16-401(A) provides: Docket Code 926 Form V000A Page 3

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A primary election shall be held, the voters shall vote therein, the method of voting shall be followed, the votes shall be counted and canvassed, the returns shall be made, all in the same manner as provided for a general election and shall otherwise conform to the laws governing general elections except as otherwise specifically provided. All provisions of other laws governing elections not in conflict and including registrations and qualifications of voters are made applicable to and shall govern primary elections.

A.R.S. § 16-401(A) (2016). Despite Plaintiffs’ arguments to the contrary, this language does not result in the application of the fifth business day deadline set forth in the Manual to a primary election. While a primary election will generally “conform to the laws governing general elections” this is only true when not “otherwise specifically provided.” In this case, pursuant to the power granted her by the Legislature, the Secretary of State has otherwise specifically provided in the Manual.

The fifth business day deadline applies only to a specific type of election, i.e., a “general election that includes an election for a federal office”. The “third business day” deadline applies to “any other election”. By its plain terms, this would include primary elections as well as general elections which do not include an election for federal office. This conclusion is confirmed by the Manual itself. The Manual contains a schedule of events which were specific to the elections of 2013 and 2014. In relation to the primary election of 2014, the “last day for identification verification for conditional provisional ballots” was stated to be August 29, 2016, which is expressly identified as “3 business days” following the election. Manual p. 250. The Manual similarly states that the “last day for identification verification for conditional provisional ballots” for the November 5, 2013 general election, which presumably did not include an election for federal office, was November 8, 2013, which is again expressly identified as “3 business days” following the election. Manual p. 240. For all these reasons, the Court finds that Plaintiffs have failed to show a strong likelihood of success on this issue.

As it pertains to the signature mismatches, Arizona law requires the County Recorder to “compare the signatures thereon with the signature of the elector on his registration form.” A.R.S. § 16-550 (2016). This process is an essential procedural safeguard to prevent fraud and ballot tampering. Reyes v. Cuming, 191 Ariz. 91, 93, 952 P.2d 329, 331 (App. 1997). See also Ariz. Const. art. VII, § 12 (“There shall be enacted registration and other laws to secure the purity of elections and guard against abuses of the elective franchise.”). For these same reasons, the early ballot voter is statutorily required to “complete and sign the affidavit”. A.R.S. § 16-548 (2016).

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These laws, like all election regulations, have an impact on the right to vote, but it can hardly be said that the enforcement of the laws at issue unconstitutionally burdens or interferes with the rights of voters. These laws do not place severe restrictions on the rights of Arizona voters but instead imposes only “’reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters [and, as such], ‘the State's important regulatory interests are [] sufficient to justify’ the restrictions.” Burdick, 504 U.S. at 434. This is especially true in light of the evidence of certain policies which have been fairly, uniformly, and equally implemented by the County whereby those voters whose either did not sign the affidavit or their signatures do not match their registration form are contacted and they can then sign or their signature can be verified. For these reasons, the Court finds that Plaintiffs have failed to show a strong likelihood of success on the signature mismatches and unsigned ballots as well.

The final category, i.e., the rejection of provisional ballots cast in the wrong precinct where election officials failed to inform voters that their votes would not be counted if they vote in the wrong precinct, presents a different problem. The issue is not the State's policy of rejecting all provisional ballots cast by voters at the wrong precinct. Indeed, Plaintiffs do not appear to contest the constitutionality of this policy or otherwise disagree with the significant interest of the State in maintaining such a policy generally. What Plaintiffs argue is unconstitutional is the application of this policy in those circumstances where the ballot was disqualified based on poll worker error.

While the Court agrees with Defendants that “garden variety” errors do not rise to the level of a deprivation of constitutional rights, the Court does not believe that the nature of the poll worker error in this case is can be accurately described as “garden variety.” Instead, the error is the result of a uniform procedure implemented by Maricopa County in instructing voters who are in the wrong precinct. This procedure is set forth in Maricopa County’s ePollbook, which instructs the poll workers how to direct each voter. Relevant to these circumstances, it specifically tells poll workers: “Direct voter to correct precinct. Is voter willing to go to that precinct? If not, the voter may vote provisionally.” Such a provisional vote will never be counted, see Manual p. 185, but there is nothing in this directive that advises poll workers of this fact. To the contrary, these instructions in the ePollbook suggest that the voter still has a legitimate opportunity to vote, just by provisional ballot. The testimony presented at the hearing also confirms that the fact such a provisional vote will never be counted is something unknown to the poll workers and they do not receive any training which either informs them of this fact or advises them to tell the voters that their vote will not be counted if cast in the wrong precinct. As a result, numerous voters who were either told by poll workers that their vote would count or, by silence, were misled to believe that their vote would count, were disenfranchised.1

1 Evidence was also presented that 728 voters countywide had their provisional ballot rejected as a result of voting in the wrong precinct. Docket Code 926 Form V000A Page 5

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Because of the systemic nature of the policy of the County, the Court finds that the burden on Maricopa County voters is severe. Further, the Court finds an absence of a legitimate interest on the part of the County defendants to not tell voters in the wrong precinct that a provisional vote cast in the wrong precinct will not be counted, a fact of which County officials are well aware. Again, while the Court recognizes the legitimate interests in maintaining the precinct-based election system and rejecting ballots cast in the wrong precinct generally, Defendants do not show how these interests support the specific restriction in this case, i.e., the rejection of wrong precinct ballots where based upon a policy of not advising voters in the wrong precinct that a provisional vote cast in the wrong precinct will not be counted. See Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 597 (6th Cir. 2012).

In the absence of such an interest, the Court finds that Plaintiffs have shown a strong likelihood of success on their equal protection claim on this issue.

B. Irreparable injury not remediable by damages if the requested relief is not granted

The Court finds that irreparable injury will occur in this case if an injunction is not granted on the sole issue discussed above. Such disenfranchisement cannot be remedied by law and the failure to include these votes may affect the outcome of this election in light of the narrow margin at issue.

C. Balance of hardships

To meet the burden showing that the balance of hardships favors it, Plaintiffs “may establish either 1) probable success on the merits and the possibility of irreparable injury; or 2) the presence of serious questions and ‘the balance of hardships tip sharply’” in his favor.” Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (Ct. App. 1990) (quoting Justice v. Nat'l Collegiate Athletic Ass'n, 577 F.Supp. 356, 363 (D.Ariz. 1983)). Plaintiffs have shown both a strong likelihood that they will succeed on the merits against Defendants on the issue discussed previously and that irreparable injury will occur. Therefore, Plaintiffs have established that the balance of hardships favors them on this issue.

D. Public policy favors the requested relief

Based upon the rights affected in this case by the disenfranchisement of voters, public policy favors the requested relief.

Therefore,

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IT IS ORDERED that the provisional ballots of the following eighteen (18) individuals be processed and counted by the Maricopa County Recorder as applicable to the races in each voter’s correct precinct: Tera Allen, Melissa Faust, Kathleeen E. Giebelhausen, James Grimes, Lisa Wieduwilt, Robert J. Wieduwilt, Jose Smith, Adam Wallace Albright, Mark Allen Atkins, Thomas Roger Barnhart, Ken Raymond Bisso, Tyler Jonathan Brown, Kathe Luise Crawford, James David Cronk, Dawn Marie Homan, Kristian James Homan, Rhoda Kimball, and Harold R. Wearne.

IT IS FURTHER ORDERED that the Maricopa County Board of Supervisors is prohibited from canvassing the results of the August 30, 2016, Primary Election, or delivering those results to the Secretary of State, until the votes referenced above are counted.

IT IS FURTHER ORDERED that all remaining relief requested by Plaintiffs is denied.

/s/ HONORABLE JOSHUA ROGERS ______HONORABLE JOSHUA ROGERS JUDICIAL OFFICER OF THE SUPERIOR COURT

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