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 26 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.