ARBARA A ALL PIMA COUNTY ATTORNEY CIVIL DIVISION Daniel ... · Daniel Jurkowitz, SBN 018428 Deputy...

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BARBARA LAWALL PIMA COUNTY ATTORNEY CIVIL DIVISION Daniel Jurkowitz, SBN 018428 Deputy County Attorney 32 North Stone Avenue, Suite 2100 Tucson, Arizona 85701 Telephone: 520-740-5750 [email protected] Attorney for Pima County Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Ron Barber for Congress; Lea Goodwine-

Cesarec, Laura Alessandra Breckenridge,

Josh Adam Cohen,

Plaintiffs,

vs.

Ken Bennett, in his official capacity as

Secretary of State of the State of Arizona;

et al.

Defendants.

No. 4:14-CV-02489-CKJ

Pima County Defendants’ Answer to

Complaint

(The Hon. Cindy K. Jorgenson)

Defendants Pima County Board of Supervisors, Ally Miller, Ramón Valadez,

Sharon Bronson, Ray Carroll, and Richard Elías (hereinafter “Pima County Defendants”)

answer Plaintiffs’ Verified Complaint for Injunctive and Declaratory Relief (“Plaintiffs’

Complaint’) as follows:

Introduction

1. With respect to the allegations contained in paragraph 1 of Plaintiffs’

Case 4:14-cv-02489-CKJ Document 31 Filed 12/11/14 of 54

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Complaint, Pima County Defendants admit that the initial returns for the 2014 election

for United States House of Representatives in Arizona’s second congressional district

have Martha McSally leading Ron Barber by 161 votes.


Complaint, Pima County Defendants admit that, pursuant to applicable Arizona law, the

133 contested ballots have not been counted. Pima County Defendants deny that under

federal and state law, that these ballots must be counted. Pima County Defendants are

without sufficient knowledge to form a belief as to the truth of the remaining allegations,

and therefore deny them.

3. With respect to the allegations contained in paragraphs 3, 4, 5, 6, 7, and 8 of

Plaintiffs’ Complaint, Pima County Defendants deny the allegations.

Parties

4. With respect to the allegations contained in paragraphs 9, 10, 11, 12, 13, 14,

15, 16, 17, 18, 19, 20, 21, 22, and 23 Pima County Defendants admit the allegations.

Jurisdiction and Venue

5. With respect to the allegations contained in paragraphs 24, 25, 26, 27, 28, and

29, Pima County Defendants admit the allegations.

Factual Allegations

A. The November 4, 2014 General Election

6. With respect to the allegations contained in paragraphs 30 and 31 of Plaintiffs’

Complaint, Defendants admit the allegations.

B. Overview of The Post-Election Canvass Process

7. With respect to the allegations contained in paragraphs 32, 33, and 34 of

Plaintiffs’ Complaint, Pima County Defendants admit the allegations.



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Complaint, Pima County Defendants admit that they had just completed the process of

canvassing the election returns as of the date of the Complaint. Pima County Defendants

deny the remaining allegations contained in paragraph 35 of Plaintiffs’ Complaint.

C. Overview of Arizona’s Early Voting System

36. With respect to the allegations contained in paragraphs 36 and 38 of


37. With respect to the allegations contained in paragraphs 37, 39 and 40 of

Plaintiffs’ Complaint, Pima County Defendants deny the allegations. [See Exhibit A,

Affidavit of Christopher J. Roads].

D. Overview of Arizona’s Provisional Ballot System




Complaint, Pima County Defendants admit that if the voter has moved to a different

residence within the county but outside the precinct, the election official “shall direct” the

voter to the polling place for the new address. A.R.S. § 16-583(A). Pima County

Defendants admit the remaining allegations within paragraph 44. [See Exhibit A,



Plaintiffs’ Complaint, Pima County Defendants deny the allegations.

E. Election Officials Have Wrongfully Rejected a Substantial Number of

Early and Provisional Ballots


Complaint, Pima County Defendants deny the allegations, and affirmatively assert that

the challenged ballots were not counted in accordance with Arizona law. [See Exhibit A,



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1. Voters Who Moved Within Pima County and Nonetheless Had Their

Provisional Ballot Rejected.


Complaint, Pima County Defendants deny the allegations and affirmatively assert that

voters who have moved, but did not update their residence address, must go to the polling

place for their new address to vote a provisional ballot at the new polling location. A.R.S.

§§ 16-135(B) and 16-584(C). [See Exhibit A, Affidavit of Christopher J. Roads].


Complaint, Pima County Defendants admit the allegations. [See Exhibit A, Affidavit of

Christopher J. Roads].


Complaint, Pima County Defendants deny the allegations. [See Exhibit A, Affidavit of



Complaint, Pima County Defendants deny the allegations because Ms. Pasch is registered

to vote at 1206 N. Howard Blvd in Tucson and has been since August 15, 2014. She did

not request an early ballot in this election and therefore would have received three

mailings indicating the correct polling place for that address. That address is within the

boundaries of precinct/voting area 075. Ms. Pasch went to the polling place assigned to

voting area 078 and voted by provisional ballot since she was not on a voter list in that

precinct. The provisional ballot form indicates that her residence address is 1206 N.

Howard Blvd and that she has a mailing address of 2317 E. 3rd Street in Tucson. The

provisional ballot was invalidated since she had not moved and was in the wrong polling

place. Ms. Pasch’s declaration indicates that she moved to the 2317 E. Third Street

address within 30 days of signing the declaration. The Third street address is within the

boundaries of precinct/voting area 078. Had Pasch completed the provisional ballot form


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indicating that her residence address was the Third Street address, her provisional ballot

would have counted. However, she completed the form indicating that the Third Street

address was only a mailing address and that her residence address had remained at the

Howard Blvd address. [See Exhibit A, Affidavit of Christopher J. Roads].




2. Voters Who Signed Both Their Registration Form and Their Ballot

Affidavit and Nonetheless Had Their Ballot Rejected Due to a

Purported “Signature Mismatch”





Complaint, Pima County Defendants deny the allegations because the early ballot was

received by the Recorder’s Office on Election Day, November 4, 2014. Her signature

could not be verified. On November 5, 2014, a message was left on the voice mail for

the contact phone number on the early ballot affidavit. A letter was also mailed to her on

November 5, 2014. A message was received in the Recorder’s Office voice mail system

on November 7, 2014, at approximately 9:27 p.m. On November 8, 2014, the Recorder’s

office attempted to contact Ms. Breckenridge by phone again and again left a message.

No further contact was received from the voter before close of business on November 9,

2014. The declaration submitted by Breckenridge does not indicate any other attempts

she made to contact the Recorder’s Office. [See Exhibit A, Affidavit of Christopher J.

Roads].


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50. With respect to the allegations contained in paragraphs 58 of Plaintiffs’

Complaint, Pima County Defendants deny the allegations as all staff of the Pima County

Recorder’s Office assigned to signature verification tasks are required to attend training

from a Forensic Document Examiner before they conduct the signature comparison. Pima

County Defendants further affirmatively assert that two signature verification workers

and the problem ballot team review any signature comparison issues. [See Exhibit A,


3. Unsigned Early and Provisional Ballots


Complaint, Pima County Defendants deny the allegations because with respect to

unsigned early ballot affidavits, it is the Pima County Recorder’s Office procedure to

return any unsigned early ballot affidavits (with the ballots sealed inside) to the voter so

that the voter can sign the affidavit provided there is sufficient time prior to Election Day

for the voter to sign and return the ballot. If there is insufficient time prior to the election

for return by mail, the staff will attempt to call the voter to either have them come in

person to sign the affidavit or to have them go to the polls on Election Day to vote by

provisional ballot. With respect to unsigned provisional ballots, the State of Arizona

Elections Procedures Manual (June, 2014) states at page 185-186:

“The [provisional] ballot shall remain unopened and shall not be counted if:

• the voter is not registered to vote, or

• the voter is in the wrong precinct/voting area, or

• the voter has not produced sufficient identification, or

• the voter’s signature does not match the signature on his/her voter

registration form, or

• the voter voted their early ballot.”

(emphasis in original) [See Exhibit A, Affidavit of Christopher J. Roads].


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Complaint, Pima County Defendants deny the allegations because if there is insufficient

time prior to the election for return by mail, the Pima County Recorder’s staff will

attempt to call the voter to either have them come in person to sign the affidavit or to

have them go to the polls on Election Day to vote by provisional ballot. Under Arizona

law, an early ballot may be dropped off at any polling place in the county on Election

Day. While that ballot is timely under state law, in reality the Recorder’s Office does not

obtain possession of those ballots from the Elections Department until very late on

election night or early the next morning. If the Recorder’ Office receives the ballot after

7:00 p.m. on Election Day, there are no steps that can be taken to have the voter sign the

early ballot affidavit since the statutory deadline is 7:00 p.m. on Election Day. A.R.S. §

16-548(A). Pima County Defendants lack sufficient information from which to form a

belief as to the truth or falsity of the allegations pertaining to Cochise County and,

therefore, deny those allegations. [See Exhibit A, Affidavit of Christopher J. Roads].


Complaint, Pima County Defendants admit the allegations. Pima County Defendants lack

sufficient information from which to form a belief as to the truth or falsity of the

allegations pertaining to Cochise County and, therefore, deny those allegations.


Complaint, Pima County Defendants deny the allegations because Elle Troutman failed

to sign the provisional ballot form. Consequently, her provisional ballot could not be

counted under Arizona law. [See Exhibit A, Affidavit of Christopher J. Roads].


Complaint, Pima County Defendants deny the allegations pertaining to Pima County.

[See Exhibit A, Affidavit of Christopher J. Roads].


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4. Failure by Election Officials to Direct Voters Who Had Moved to the

Proper Precinct.


Complaint, Pima County Defendants deny the allegations. The word “shall” in Arizona

statutes does not necessarily mean a duty is mandatory. It may be directory and indicate

merely “desirability, preference or permission.” Forino v. Arizona. Department of

Transportation, 191 Ariz. 77, 81, 952 P.2d 315, 319 (App. 1997). Nevertheless, Pima

County elections officials made many efforts to direct voters to the correct polling

location. Prior to the start of early voting for the November 4, 2014 election, every

household with a registered voter in Pima County was sent a publicity pamphlet relating

to propositions on the ballot. Each of those publicity pamphlets identified the polling

place for the voters residing at the address where the information pamphlet was mailed.

The polling place information was listed on the front cover of the information pamphlet.

In addition, the Pima County Elections Department mailed sample ballots to every

household that included any voter not on the Permanent Early Voting list. Any voter who

did not request an early ballot was also sent a yellow polling place card just prior to

Election Day. The sample ballots and yellow cards all included the voter’s polling place

information. Starting approximately 45 days prior to Election Day, the Pima County

Recorder’s Office website, www.recorder.pima.gov includes a polling place finder for

any voter in Pima County. The voter merely has to click on the “Polling Location” icon

under voter services and enter their current address. The site will immediately return the

address and location for the assigned polling place for the entered address. The Pima

County Recorder’s Office also operates a phone bank to assist voters in all aspects of

voting, including finding their correct polling place, both before and on Election Day.



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Complaint, Pima County Defendants deny the allegations because Plaintiff Cohen is

registered to vote at 3300 N. Paseo de los Rios and has been since June 8, 2012. That

address is within the boundaries of precinct/voting area 099. He did not request an early

ballot for this election. On Election Day he went to the polling place for voting area 099

and voted a provisional ballot. On that provisional ballot form he indicated that his

residence address was 5745 E. Burns Street in Tucson. That address is within the

boundaries of precinct/voting area 108. He was therefore in the wrong polling place for

his new address and his provisional ballot was invalid. The declaration signed by Cohen

indicates that he moved in January and chose to go to the old polling place to vote. [See

Exhibit A, Affidavit of Christopher J. Roads].


Complaint, Pima County Defendants deny the allegations because Plaintiff Goodwine-

Cesarec is registered to vote at 8111 E. Broadway Blvd in Tucson and has been since

July 19, 2014. That address is within the boundaries of precinct 116. She is enrolled on

the Permanent Early Voting List and was mailed an early ballot for the 2014 General

Election. That early ballot was not returned to the Recorder’s Office by the United States

Postal Service. Goodwine-Cesarec went to the polling place for precinct 116 and was

required to vote by provisional ballot due to the early ballot. When she completed the

provisional ballot form, Goodwine-Cesarec noted a new address at 6199 E. Broadway.

That address is within the boundaries of precinct 108. Goodwine-Cesarec cast her ballot

in the wrong polling place for her new address and the provisional ballot was invalidated.

In her declaration Goodwine-Cesarec states that she called the voter registration office to

change her address about a month prior to the election. However, the Recorder’s Office

does not modify any voter registration residence address by phone. She would have been

instructed to submit a new voter registration form or to submit a written and signed notice


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that she had moved to a new address before her record could have been updated. No

written notice of the address change was received by the Recorder’s Office prior to

Election Day. [See Exhibit A, Affidavit of Christopher J. Roads].


Complaint, Pima County Defendants admit the allegations. Pima County Defendants

lack sufficient information from which to form a belief as to the truth or falsity of the


5. Misleading or Erroneous Statements by Elections Officials regarding

Voting in Proper Precinct.





Complaint, Pima County Defendants deny the allegations because Rankin is registered to

vote at 10183 E. Desert Crossings Way in Tucson and has been since September 16,

2000. That address is within the boundaries of precinct 224. Rankin is enrolled on the

Permanent Early Voting List and was mailed an early ballot for the 2014 General

Election. That early ballot has not been returned to the Pima County Recorder’s Office.

On Election Day Rankin went to the polling place for precinct 090. She voted a

provisional vote at that location listing her residence address as the Desert Crossings

address listed above. Since she was in the wrong polling place for her residence address,

her provisional ballot was properly invalidated. [See Exhibit A, Affidavit of Christopher

J. Roads].


Complaint, Pima County Defendants admit the allegations. Pima County Defendants lack


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sufficient information from which to form a belief as to the truth or falsity of the


6. Voters Who Were Not Told They Were in the Wrong Precinct


Plaintiffs’ Complaint, Pima County Defendants deny the allegations. Pima County

Defendants lack sufficient information from which to form a belief as to the truth or

falsity of the allegations pertaining to Cochise County and, therefore, deny those

allegations. [See Exhibit A, Affidavit of Christopher J. Roads].

F. Election Officials Have Refused to Correct These Errors


Plaintiffs’ Complaint, Pima County Defendants admit the allegations. Pima County

Defendants affirmatively assert that the last date to legally verify a provisional ballot was

November 14, 2014, or ten days after Election Day. STATE OF ARIZONA ELECTIONS

PROCEDURES MANUAL 185 (June, 2014). Before a conditional ballot may be verified,

the County Recorder must determine whether the voter cast an early ballot. Id. at 182.

Consequently, all early ballots must have been verified by November 14, 2014, as well.

By the time Pima County Defendants canvassed the General Election on November 18,

2014, it would have been legally impermissible to make further changes to early or

provisional ballot verifications.

65. With respect to the allegations contained in paragraph 74, Pima County

Defendants admit that the canvass of the 2012 General Election was conducted at a

special meeting of the Board of Supervisors on November 26, 2012. The canvass for the

2014 General Election was conducted on November 18, 2014, the last regular meeting

date of the Board of Supervisors before the deadline, as all election returns were

complete.


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Complaint, Pima County Defendants lack sufficient information from which to form a

belief as to the truth or falsity of the allegations pertaining to Cochise County and,

therefore, deny those allegations.


Complaint, Pima County Defendants are without knowledge sufficient to know the truth

or falsity of the allegations, and therefore deny them.

First Claim for Relief

Equal Protection

U.S. Const. Amend. XIV, 42 U.S.C. § 1983

Arbitrary and Disparate Treatment of Similarly-Situated Voters

(Bush v. Gore)

67. With respect to the allegations contained in Paragraph 78 of Plaintiffs’

Complaint, Pima County Defendants incorporate their responses as set forth above, as if

set forth in full herein.


Complaint, Pima County Defendants admit the allegations.


Complaint, Pima County Defendants deny that they violated the Equal Protection Clause.



Complaint, Pima County Defendants admit the allegations.


Plaintiffs’ Complaint, Pima County Defendants deny the allegations. Pima County

Defendants are not responding on behalf of Cochise County Defendants or the Secretary

of State. [See Exhibit A, Affidavit of Christopher J. Roads].


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Second Claim for Relief

Equal Protection


Undue Burden on the Right to Vote

(Burdick v. Takushi)


Complaint, Pima County Defendants incorporate its responses as set forth above, as if set

forth in full herein.




Third Claim for Relief

Due Process










Fourth Claim for Relief

Ariz. Const. Art. II, § 21





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Complaint, Pima County Defendants admits the Arizona Constitution protects the right to

vote.




Fifth Claim for Relief

Help America Vote Act

52 U.S.C. § 21082(a)(4)





Complaint, Pima County Defendants admit that Plaintiffs have quoted from the statute.




Sixth Claim for Relief

Violations of Arizona Elections Law

A.R.S. §§ 16-579, 16-583, 16-584, Elections Procedures Manual (2014)





Plaintiffs’ Complaint, Pima County Defendants admit that Plaintiffs have quoted from

applicable Arizona law.


Complaint, Pima County Defendants deny the allegations. Pima County Defendants are


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not responding on behalf of Cochise County Defendants. [See Exhibit A, Affidavit of



Complaint, Pima County Defendants admit that Plaintiffs have quoted from the statute,

but deny the provision is a mandatory obligation. [See Exhibit A, Affidavit of



Complaint, Pima County Defendants deny the allegations. Pima County Defendants are

not responding on behalf of Cochise County Defendants. [See Exhibit A, Affidavit of


Declaratory and Injunctive Relief

28 U.S.C. §§ 2201 and 2202, Fed. R. Civ. P. 57 and 65




89. With respect to the allegations contained in paragraphs 107, 108, and 109

of Plaintiffs’ Complaint, Pima County Defendants deny the allegations. Pima County

Defendants are not responding on behalf of Cochise County Defendants.

90. Pima County Defendants deny any allegations not specifically admitted to

herein.

91. Pima County Defendants deny Plaintiffs are entitled to any of the relief

requested in the Prayer for Relief on pages 24 and 25 of Plaintiffs’ Complaint.

WHEREFORE, having fully responded to Plaintiffs’ Complaint, Pima County

Defendants request the following:

1. enter a Judgment in favor of Pima County; and,

2. award Pima County its reasonable attorney’s fees, costs, and other expenses

incurred in the defense of this action; and


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3. such other findings and relief as the Court deems just and proper and enter an

Order confirming the same.

RESPECTFULLY SUBMITTED December 11, 2014. BARBARA LAWALL PIMA COUNTY ATTORNEY

By /s/: Daniel Jurkowitz Daniel Jurkowitz Deputy County Attorney


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CERTIFICATE OF SERVICE

I hereby certify that on December 11, 2014, I electronically transmitted the

foregoing document to the Clerk’s Office using the CM/ECF System which will

send notification of such filing to all counsel of record:

BARBARA LAWALL PIMA COUNTY ATTORNEY

By /s/ Daniel Jurkowitz Daniel Jurkowitz Deputy County Attorney


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EXHIBIT A


ARBARA A ALL PIMA COUNTY ATTORNEY CIVIL DIVISION Daniel ... · Daniel Jurkowitz, SBN 018428 Deputy...

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Transcript of ARBARA A ALL PIMA COUNTY ATTORNEY CIVIL DIVISION Daniel ... · Daniel Jurkowitz, SBN 018428 Deputy...