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Plaintiffs' Notice of Lodging Proposed Prelim. Inj. Order

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Plaintiffs' Notice of Lodging Proposed Prelim. Inj. Order Clerk of the Superior Court *** Electronically Filed *** T. Hays, Deputy 4/28/2021 9:33:27 AM Filing ID 12828066 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 85283 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’ NOTICE OF LODGING Plaintiffs, ) OF PROPOSED FORM OF 19 ) PRELIMINARY INJUNCTION ORDER v. 20 ) ) 21 KAREN FANN, in her official capacity as (Assigned to The Hon. Daniel Martin) President of the Arizona Senate; WARREN ) ) 22 PETERSEN, in his official capacity as Chairman of the Senate Judiciary Committee; ) 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 {00546273.1 } 1 Plaintiffs Arizona Democratic Party and Supervisor Steve Gallardo hereby give notice 2 that they have lodged with the Court a proposed form of order for a preliminary injunction in 3 this matter, a copy of which is also attached hereto as Exhibit 1. 4 5 RESPECTFULLY SUBMITTED this 28th day of April, 2021. 6 COPPERSMITH BROCKELMAN PLC 7 By s/ Roopali H. Desai 8 Roopali H. Desai D. Andrew Gaona 9 Kristen Yost 10 BARTON MENDEZ SOTO PLLC 11 James E. Barton II Jacqueline Mendez 12 Attorneys for Plaintiffs 13 14 15 FOREGOING FILED and COPY served via electronic 16 means on April 28, 2021, upon: 17 The Honorable Daniel J. Martin 18 Maricopa County Superior Court [email protected] 19 Kori Langhofer ([email protected]) 20 Thomas Basile ([email protected]) 21 Statecraft 649 North Fourth Avenue, First Floor 22 Phoenix, AZ 85003 Attorneys for Fann Defendants 23 Alexander Kolodin ([email protected]) 24 Kolodin Law Group PLLC 25 3443 N. Central Avenue, Suite 1009 Phoenix, AZ 85012 26 {00546273.1 } - 2 - 1 Bryan J. Blehm ([email protected]) Blehm Law PLLC 2 3443 N. Central Avenue, Suite 1009 Phoenix, AZ 85012 3 Attorneys for Defendant Cyber Ninjas 4 Mary O’Grady ([email protected]) 5 Joshua Bendor ([email protected]) Emma Cone-Roddy ([email protected]) 6 Osborn Maledon PA 7 2929 N. Central Avenue, 21st Floor Phoenix, Arizona 85012-2793 8 Attorneys for Secretary of State Katie Hobbs 9 Joseph E. La Rue ([email protected]) Karen Hartman-Tellez ([email protected]) 10 Maricopa County Attorney’s Office 11 225 W. Madison Avenue Phoenix, AZ 85003 12 Attorneys for Maricopa County 13 Daniel C. Barr ([email protected]) 14 Samantha J. Burke ([email protected]) Perkins Coie LLP 15 2901 N. Central Avenue, Suite 2000 Phoenix, AZ 85012-2788 16 Attorneys for First Amendment Coalition of Arizona, Inc. 17 18 /s/ Sheri McAlister 19 20 21 22 23 24 25 26 {00546273.1 } - 3 - 1 Exhibit Exhibit 1 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 85283 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 ) ORDER GRANTING PRELIMINARY Plaintiffs, ) INJUNCTION 19 ) v. 20 ) ) (Assigned to The Hon. Daniel G. Martin) 21 KAREN FANN, in her official capacity as President of the Arizona Senate; WARREN ) ) 22 PETERSEN, in his official capacity as Chairman of the Senate Judiciary Committee; ) 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 {00546259.1 } 1 Plaintiffs filed this action for declaratory and injunctive relief against Defendants seeking: 2 (1) an order restraining and enjoining Defendants from conducting an audit of the 2020 General 3 Election in Maricopa County (“Audit”); and (2) a declaration that the audit is unlawful and in 4 violation of statutes and the Elections Procedures Manual (“EPM”). Having considered 5 Plaintiffs’ Motion for Temporary Restraining Order (with Notice) and Order to Show Cause 6 Why Declaratory Judgment Should Not be Entered Expeditiously (“Motion”), the response and 7 reply briefs, the Verified Complaint, the arguments of counsel, and the entire file in this matter, 8 and good cause appearing, Plaintiffs’ Motion is hereby GRANTED for the following reasons: 9 1. Plaintiffs are likely to succeed on the merits of their claim that the manner in which 10 Defendants are performing the audit violates Arizona law. 11 2. Plaintiff Gallardo, Plaintiff Arizona Democratic Party for itself and on behalf of 12 its members, and Intervenor-Plaintiff Secretary of State Katie Hobbs have particularized 13 interests in this action sufficient to establish standing. E.g., Armory Park Neighborhood Ass’n v. 14 Episcopal Cmty. Servs., 148 Ariz. 1, 6, (1985). 15 3. In addition, standing is a prudential doctrine in Arizona. 16 4. Defendants are not entitled to legislative immunity from this action under Ariz. 17 Const. art. IV, pt. 2, §§ 6, 7. 18 5. The Senator Defendants waived any claim of legislative immunity when they 19 sought the assistance of the Court in determining the validity of the subpoenas giving rise to the 20 audit at issue in this case. Ariz. Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, 144 ¶ 48 21 (App. 2003). 22 6. The requested relief in this action would not interfere with the Senator Defendants’ 23 ability to physically represent their constituents during legislative session. Ariz. Const. art. IV, 24 pt. 2, § 6. 25 7. The legislative privilege does not extend to Defendants Ken Bennett and Cyber 26 Ninjas. {00546259.1 } - 2 - 1 8. The legislative privilege does not apply to the administrative acts – the handling 2 of ballots, equipment, and voter information – challenged in this action. 3 9. Plaintiffs did not unreasonably delay in bringing this action, and any delay on the 4 part of Plaintiffs would have been no more than a few days and in no way prejudiced Defendants. 5 10. The Arizona Senate has the power to perform an election audit, but this power does 6 not allow Defendants to violate Arizona or federal law in performing the audit. 7 11. The Court has authority to order Defendants to conduct their handling of ballots, 8 voting equipment, and voter information in accordance with the procedures in the Elections 9 Procedures Manual, state and federal statutory law, and the Arizona Constitution, and doing so 10 is not an exercise of power conferred to the Legislature. San Carlos Apache Tribe v. Superior 11 Ct. ex rel. Cty. of Maricopa, 193 Ariz. 195, 211 ¶ 37 (1999) (the “power to define existing law 12 . and to apply it to facts rests exclusively within the judicial branch.”). 13 12. A.R.S. § 16-452 directs the Secretary of State to “prescribe rules [in the EPM] to 14 achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency 15 on the procedures for early voting and voting, and of producing, distributing, collecting, 16 counting, tabulating and storing ballots.” 17 13. The EPM has the force and effect of law. Ariz. Pub. Integrity All. v. Fontes, 250 18 Ariz. 58 ¶16 (2020); A.R.S. § 16-452(C). 19 14. The EPM, consistent with applicable provisions in Title 16 of the Arizona Revised 20 Statutes, spells out detailed rules and procedures intended to ensure, among other things, (i) the 21 security and confidentiality of ballots and voting and tabulation equipment, and (ii) the accuracy 22 and reliability of ballot counting and tabulation. 23 15. Many of the EPM provisions plainly apply to Defendants and their agents in 24 performing the audit. 25 26 {00546259.1 } - 3 - 1 16. Defendants have argued to this Court that the EPM does not apply to them, and 2 the evidence in the record reveals that Defendants have failed to comply with applicable EPM 3 provisions in performing the audit. 4 17. Plaintiffs are likely to suffer irreparable harm if a preliminary injunction is not 5 issued to prevent Defendants from conducting an audit in violation of Arizona law and without 6 necessary protections to preserve the integrity and security of the process, equipment, and voters’ 7 ballots and private information. 8 18. Plaintiffs have demonstrated that the balance of hardships tips sharply in their 9 favor and that public policy favors the grant of a temporary restraining order. 10 Accordingly, 11 IT IS HEREBY ORDERED that Plaintiffs’ Motion for a Preliminary Injunction is 12 granted. 13 IT IS FURTHER ORDERED that Defendants and their agents are preliminarily 14 enjoined from performing the audit until further order from the Court. 15 IT IS FURTHER ORDERED that by April 28, 2021, at 5:00 p.m., Defendants must file 16 with the Court and disclose to the other parties all policies and procedures Defendants and their 17 agents are using to conduct the audit, including any revisions or changes in procedures since the 18 audit started on Friday, April 23, 2021.
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