Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 1 of 25

1 Roopali H. Desai (024295) Stephen E. Morrissey (admitted pro hac vice)

D. Andrew Gaona (028414) SUSMAN GODFREY L.L.P.
2 Kristen Yost (034052) 1201 Third Avenue, Suite 3800
Seattle, WA 98101-3000
3 COPPERSMITH BROCKELMAN PLC T: (206) 516-3880
2800 North Central Avenue, Suite 1900 [email protected]
4 Phoenix, AZ 85004
T: (602) 381-5478 Stephen Shackelford (admitted pro hac vice)
5 [email protected] SUSMAN GODFREY L.L.P.
[email protected] 1301 Avenue of the Americas, 32nd Floor
6 New York, NY 10019-6023
[email protected] T: (212) 336-8330
7 [email protected]
Justin A. Nelson (admitted pro hac vice)
8 SUSMAN GODFREY L.L.P. Davida Brook (admitted pro hac vice)
1000 Louisiana, Suite 5100 SUSMAN GODFREY L.L.P.
9 Houston, TX 77002-5096 1900 Avenue of the Stars, Suite 1400
T: (713) 651-9366 Los Angeles, CA 90067
10 T: (310) 789-3100
[email protected] [email protected]
11
Attorneys for Defendant Arizona Secretary of State Katie Hobbs
12
13 UNITED STATES DISTRICT COURT
14 DISTRICT OF ARIZONA
15 Tyler Bowyer; Michael John Burke; Nancy No. CV-20-02321-PHX-DJH
Cottle; Jake Hoffman; Anthony Kern;
16 Christopher M. King; James R. Lamon; Sam
Moorhead; Robert Montgomery; Loraine DEFENDANT SECRETARY OF
17 Pellegrino; Greg Safsten; Salvatore Luke STATE KATIE HOBBS’
Scarmardo; Kelli Ward; and Michael Ward, COMBINED MOTION TO
18 DISMISS AND OPPOSITION TO
19 Plaintiffs, MOTION FOR
TRO/PRELIMINARY
20 v. INJUNCTION

21 Doug Ducey, in his official capacity as

Governor of the State of Arizona; and Katie
22 Hobbs, in her official capacity as Arizona
Secretary of State,
23
Defendants.
24
25 MARICOPA COUNTY BOARD OF
SUPERVISORS; and ADRIAN FONTES, in his
26 official capacity as Maricopa County Recorder,
27 Intervenors.
28

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1 I. INTRODUCTION
2 This case is the latest in a series of baseless attacks on the results of the 2020

3 election. The complaint spins together—in part, literally through what purports to be an

4 anonymous witness referred to only as “Spider”1—the broad outlines of a supposed

5 conspiracy that spanned the globe. Plaintiffs allege that this plan somehow originated in

6 Venezuela more than a decade ago, over the years enlisted “rogue actors” from various

7 “countries such as Serbia” and “foreign interference by Iran and China” [id. ¶¶ 13, 70,

8 74, 78], compromised voting machines and software in states across the country in this

9 election [id. ¶¶ 60, 63-102], and was ultimately executed with the assistance of thousands

10 of Democratic, Republican, and non-partisan election officials despite the presence of

11 observers for both parties in numerous states across the country, including Arizona [id.

12 ¶¶ 65-66].

13 The object of the dystopian fiction set forth in plaintiffs’ complaint is to overturn

14 the election results determined by the will of nearly 3.5 million Arizona voters.

15 At stake, in some measure, is faith in our system of free and fair elections, a feature
central to the enduring strength of our constitutional republic. It can be easy to
16 blithely move on to the next case with a petition so obviously lacking, but this is
sobering. The relief being sought by the petitioners is the most dramatic invocation
17 of judicial power I have ever seen. Judicial acquiescence to such entreaties built
on so flimsy a foundation would do indelible damage to every future election.
18
No. 2020AP1930-OA, Wisconsin Voters Alliance v. Wisconsin Elections Commission at
19
*3 (Wis. Sup. Ct. Dec. 4, 2020) (Hagedorn, J.) (concurring and joined by a majority of
20
Justices) (attached as Ex. A). Other courts have uniformly rejected similar baseless
21
attacks.2 This Court should do so as well.
22
23
1
[Doc. 1 (Compl.), Ex. 12].
24 2
See generally Donald J. Trump for President, Inc. v. Boockvar, No 4:20-CV-02078,
25 2020 WL 6821992 (M.D. Pa. Nov. 21, 2020), aff’d, No. 20-3371, ECF No. 91 (3d Cir.
Nov. 27, 2020); Bognet v. Sec’y of Commonwealth, No. 20-3214, 2020 WL 6686120 (3d
26 Cir. Nov. 13, 2020) (affirming denial of preliminary injunction against counting
purported “illegal” absentee ballots on equal protection grounds); Wood v. Raffensperger,
27 No. 1:20-cv-04561-SDG, ECF No. 54 (N.D. Ga. 2020) (rejecting motion to enjoin
Georgia’s certification of election results based on equal protection arguments similar to
28 those made here).
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1 First, plaintiffs’ claims fall miles short of the standards under Twombly and Iqbal,
2 let alone the heightened pleading standards of Fed. R. Civ. P. 9(b). Second, plaintiffs’
3 claims must be brought in an election contest—a matter reserved exclusively for the
4 jurisdiction of the Arizona state courts. Third, as voters with a generalized grievance
5 regarding the election, plaintiffs lack standing. Recently, courts have rejected similar
6 claims for lack of standing in Pennsylvania and Georgia. Bognet v. Sec’y of the
7 Commonwealth of Pa., -- F.3d --, 2020 WL 6686120, at *19 (3d Cir. Nov. 13, 2020);
8 Wood v. Raffensperger, No. 1:20-cv-04651, 2020 WL 6817513, at *5 (N.D. Ga. Nov. 20,
9 2020). Fourth, plaintiffs’ claims are barred by laches. Finally, this Court should abstain
10 from adjudicating this matter in deference to ongoing state proceedings and respect for
11 the Secretary’s Eleventh Amendment immunity.
12 Even if plaintiffs’ claims could somehow overcome these many procedural
13 defects, they would just as assuredly fail on the merits for the reasons described below.3
14 Because plaintiffs’ claims lack merit, their motion for a temporary restraining order and
15 for preliminary injunctive relief also fail. Moreover, the balance of hardships tips strongly
16 against plaintiffs. Plaintiffs sat on their hands not just while the election was but for more
17 than a month afterwards. Plaintiffs’ requested relief would imperil Arizona’s participation
18 in the Electoral College and potentially disenfranchise nearly 3.4 million Arizonans,
19 thereby rendering it impossible for the Secretary to fulfill her primary responsibility of
20 operating an election that fulfills the will of Arizona voters, as she did. The Secretary
21 respectfully requests that the Court dismiss plaintiffs’ complaint and deny their motion
22 for a temporary restraining order and preliminary injunctive.
23 II. BACKGROUND
24 A. Arizona’s election was fair and secure by any measure.
25 In the face of a once-in-a-century pandemic and unprecedented misinformation,
26 Arizona election officials successfully administered a free, fair, and secure election on
27
28 3
A certificate of consultation required by Local Rule 12.1(c) is attached as Exhibit C.
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1 November 3. Over 3.4 million Arizonans—nearly 80% of eligible voters—exercised their

2 right to vote. Turnout was at a record high across the state, and counties completed and
3 passed post-election hand count audits and logic and accuracy testing.4
4 B. The Secretary of State and Governor canvassed the 2020 election and
transmitted certificates of ascertainment.
5
6 Consistent with their obligations under Arizona law, the Secretary of State and
7 Governor certified the statewide canvass for the 2020 General Election in the presence of
8 Attorney General Mark Brnovich and Chief Justice Robert Brutinel, on November 30,
9 2020. Ariz. Sec’y of State, 2020 General Election
10 Canvass, https://azsos.gov/sites/default/files/2020_General_State_Canvass.pdf; see also
11 A.R.S. § 16-648(A) (ordering certification of the statewide canvass “[o]n the fourth
12 Monday following a general election”). The same day, the Governor signed and the
13 Secretary of State attested to the certificate of ascertainment for the Biden presidential
14 electors. Consistent with the Electoral Count Act, the State transmitted the certificate to
15 the United States Archivist (and is now publicly available), and certificates of election
16 were issued to the individual presidential electors. 3 U.S.C. § 6; National Archives, 2020
17 Electoral College Results, Arizona, https://www.archives.gov/files/electoral-
18 college/2020/ascertainment-arizona.pdf.
19 C. Plaintiffs’ attorneys have filed near-identical cases in 3 other states.
20 Plaintiffs’ complaint is the latest in a series of frivolous lawsuits with nearly
21 identical allegations filed by Plaintiffs’ counsel in states President-elect Biden won. See
22 Feehan v. Wis. Elections Comm’n, No. 20-cv-1771-pp (E.D. Wis.); King v. Whitmer, No.
23 2:20-cv-13134 (E.D. Mich.); Pearson v. Kemp, No. 1:20-cv-04809-TCB (N.D. Ga.). All
24 four lawsuits allege that thousands of elections officials somehow orchestrated a
25 transnational conspiracy to steal an election by manufacturing votes and improperly
26
4
Ariz. Sec’y of State, State of Arizona Official Canvass, at 1 (Nov. 24, 2020),
27 https://azsos.gov/sites/default/files/2020_General_State_Canvass.pdf.; Ariz. Sec’y of
State, Summary of Hand Count Audits–2020 General Election (Nov. 17, 2020),
28 https://azsos.gov/election/2020-general-election-hand-count-results.
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1 counting votes, supported by nary a shred of credible evidence. That these are little more
2 than shotgun form lawsuits is evidenced by their apparent inability to keep their states
3 straight. Here, for example, Plaintiffs’ motion argues that the evidence shows “that
4 Defendants failed to administer the November 3, 2020 election in compliance with the
5 manner prescribed by the Georgia legislature.” Doc. 2 (Pl.’s Mot. for TRO) at 6
6 (emphasis added).5
7 D. This case was filed on the heels of a strikingly similar election contest,
brought mere days ago in state court by one of the named Plaintiffs.
8
Just two days before filing this complaint seeking to “set aside the 2020 General
9
Election results,” one of the named Plaintiffs—Dr. Kelli Ward, Chair of the Arizona
10
Republican Party—brought an elections contest in Maricopa County Superior Court.
11
Ward v. Jackson, et al., CV 2020-015285 (filed Sup. Ct. Maricopa Cty. Nov. 24, 2020)
12
(attached as Ex. B).
13
The similarities between the two cases are numerous. In her state-court elections
14
contest, for example, Dr. Ward seeks to have the court (i) order “that the election [be]
15
annulled and set aside,” (ii) conclude “that the Trump Electors have the highest number
16
of legal votes[,] and [(iii)] declare those persons elected.” See Ward Complaint at 9
17
(Prayer for Relief). Similarly, Plaintiffs seek here that the election results be “annulled
18
and set aside.” Doc. 1, ¶ 16. The commonalities between these matters also extend to
19
many specific factual allegations. In her state-court elections contest, for example, Dr.
20
Ward contends that “election officials completely failed and/or refused to allow legal
21
observers to fully observe” proceedings. See Ward Complaint ¶¶ 21-23, 26. This, she
22
claims, amounts to statutory “misconduct” that warrants a declaration “that the election
23
is annulled and set aside.” Ward Complaint ¶ 37. Similarly, here, Plaintiffs (including Dr.
24
Ward) claim that election officials committed misconduct because they “acted and will
25
26
5
See also Zach Montellaro and Kyle Cheney, Pro-Trump Legal Crusade Peppered With
27 Bizarre Blunders, Politico, Dec. 3, 2020,
https://www.politico.com/news/2020/12/03/sidney-powell-trump-election-lawsuit-
28 442472.
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1 continue to act under color of state law to violate Plaintiffs’ right to be present and have
2 actual observation and access to the electoral process.” Doc. 1 ¶¶ 15, 118, 120. And
3 similarly, here, Plaintiffs seek as their first request “[a]n order directing Governor Ducey
4 and Secretary Hobbs to de-certify the election results.” Id. ¶¶ 145.1.
5 Earlier today, the Superior Court denied all relief requested by Dr. Ward. Prior to
6 today’s ruling, the Superior Court partially dismissed Dr. Ward’s case on the record based
7 on laches, to the extent she sought to raise an election contest on the basis of official
8 misconduct for failure to permit observers to view election proceedings. In addition to
9 this action, various other challenges to Arizona’s General Election have failed in state
10 court. See, e.g., Aguilera, et al v. Fontes, et al., No. 2020-014083, (Maricopa Sup. Ct.);
11 Trump, et al. v. Hobbs, et al., No. 2020-014248, (Maricopa Sup. Ct); Arizona Republican
12 Party v. Fontes, et al., No. 2020-014553, Maricopa Sup. Ct.); Aguilera, et al. v. Fontes,
13 et al., No. 2020-014562 (Maricopa Sup. Ct.); Ward v. Jackson, et al., No. 2020-015285,
14 Maricopa Sup. Ct.).
15 III. ARGUMENT
16 A. Legal Standard
17 This Court must first assure itself that it has jurisdiction to hear the present
18 controversy, by determining that Plaintiffs have standing. A case “brought by a plaintiff
19 without … standing is not a ‘case or controversy,’ and an Article III federal court therefore
20 lacks subject matter jurisdiction over the suit.” Cetacean Cmty. v. Bush, 386 F.3d 1169,
21 1174 (9th Cir. 2004) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101
22 (1998)). In addition, the Court must determine whether Plaintiffs have “prudential
23 standing”—that is, whether their claims “‘fall within the zone of interests to be protected
24 or regulated by the statute or constitutional guarantee in question.’” Yakima Valley Mem’l
25 Hosp. v. Washington State Dep’t of Health, 654 F.3d 919, 932 (9th Cir. 2011) (quoting
26 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454
27 U.S. 464, 474 (1982)).
28

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1 If the Court is satisfied that it has the power to hear the dispute, it may then evaluate
2 whether the factual allegations, taken as true, “nudge” the complaint “across the line from
3 conceivable,” Eclectic Properties E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 997
4 (9th Cir. 2014), to “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2008);
5 see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Allegations are not
6 plausible, however, where there exists an “obvious alternative explanation” for alleged
7 misconduct, Capp v. Cty. of San Diego, 940 F.3d 1046, 1055 (9th Cir. 2019) (quoting
8 Iqbal, 556 U.S. at 682; Twombly, 550 U.S. at 567), based on “judicial experience and
9 common sense.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047,
10 1056 (9th Cir. 2011) (quoting Iqbal, 556 U.S. at 679). And where, as here, Plaintiffs state
11 claims sounding in fraud, a court must additionally find that the allegations meet the
12 “heightened” pleading standard” for fraud claims required by Rule 9(b), and that they
13 have been raised “with particularity.” Cafasso, 637 F.3d at 1054-1055.
14 As discussed below, Plaintiffs fail to satisfy these standards.
15 B. The claims brought in this case must be brought in state court as part
of an elections contest.
16
17 Plaintiffs’ suit advances claims that, at bottom, must be brought in an elections
18 contest. And an elections contest in Arizona must be brought in state court, not federal
19 court. Indeed, Plaintiffs themselves acknowledge that the grounds for this lawsuit are
20 among the same grounds specifically envisioned by the Arizona elections contest statute:
21 alleged misconduct, illegal votes, offenses against the franchise, and erroneous counting.
22 Doc. 1, ¶ 15 (citing A.R.S. § 16-672). And Plaintiffs rely on both the remedies and the
23 timeline provided by the Arizona contest statute. Id. ¶¶ 16, 18; see also id. ¶ 123.
24 Plaintiffs’ attempt to have it both ways—relying on Arizona’s contest statute to their
25 benefit while simultaneously admitting that this is not actually an election contest (in
26 order to avoid state court)—should not be condoned by this Court.
27 Because of the “strong public policy favoring stability and finality of election
28 results,” the Arizona Supreme Court requires that election contests be made in “strict

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1 compliance” with the statutory requirements. Donaghey v. Ariz. Attorney Gen., 584 P.2d
2 557, 559 (Ariz. 1978). Those requirements include A.R.S. § 16-672(B)’s mandate that
3 contests be brought in state court.
4 To be clear: Plaintiffs are absolutely correct that this lawsuit is not an elections
5 contest under Arizona law. But that does not save them. Plaintiffs are not allowed to
6 circumvent Arizona’s strict rules for bringing challenges to election results by filing a
7 federal court lawsuit and calling it something different. They must follow the law.
8 Plaintiffs are forum shopping. That one Plaintiff here brought a state elections contest and
9 lost is not an excuse to bring an action in federal court seeking the same remedy.
10 C. Plaintiffs lack Article III and prudential standing.
11 Plaintiffs’ claims also fail for a further procedural reason that does not even require
12 the Court to reach the merits: they lack standing, under both Article III of the U.S.
13 Constitution and as a prudential matter. “The doctrine of standing asks whether a litigant
14 is entitled to have a federal court resolve his grievance. This inquiry involves ‘both
15 constitutional limitations on federal-court jurisdiction and prudential limitations on its
16 exercise.’” Kowalski v. Tesmer, 543 U.S. 125, 128-29 (2004) (quoting Warth v. Seldin,
17 422 U.S. 490, 498 (1975)). To establish standing, plaintiffs must show: (1) injury in fact;
18 (2) a causal connection between their claim and the alleged injury; and (3) redressability
19 of the claimed harm. Barnum Timber Co. v. U.S. Env’l Prot. Agency, 633 F.3d 894, 897
20 (9th Cir. 2011). As electors who voted in the recent election who can offer nothing but
21 speculation and conjecture as to how the scheme they implausibly allege might have
22 affected the outcome of the election, plaintiffs have no right to pursue a “generalized
23 grievance” regarding the procedures or outcome of the recent election.
24 1. Plaintiffs lack standing to pursue their Electors and Elections
Clause Claim (Count 1).
25
26 Plaintiffs claim that defendants failed to follow Arizona law in certifying voting
27 machines, verifying signatures, and restricting access to poll observers. Doc. 1, ¶¶ 43-53,
28 103-11. This is “precisely the kind of undifferentiated, generalized grievance about the

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1 conduct of government that [courts] have refused to countenance in the past.” Lance v.
2 Coffman, 549 U.S. 437, 442 (2007).
3 Plaintiffs do not gain standing by virtue of their roles as presidential electors. The
4 role of a presidential elector under Arizona law is purely ministerial: electors “shall cast
5 their electoral college votes for the candidate for president and the candidate for vice
6 president who jointly received the highest number of votes in this state as prescribed in
7 the canvass.” A.R.S. § 16-221(B). The Arizona legislature has further determined that
8 any elector who does not cast their vote in accordance with the results certified by the
9 Secretary “is no longer eligible to hold the office of presidential elector and that office is
10 deemed and declared vacant by operation of law.” Id. § 16-221.C. Thus, there can be no
11 claim that the State is depriving Plaintiffs of any individual right under the Electors and
12 Elections Clause by failing to administer the election in the manner plaintiffs desire.
13 Indeed, the Third Circuit recently held that plaintiffs—whether voters or candidates—
14 have no private right of action at all under the Electors and Elections Clause. Bognet,
15 2020 WL 6686120, at *19 (3d Cir. Nov. 13, 2020).
16 Prudential standing leads to the same result. Under the prudential standing
17 doctrine, even plaintiffs who can show some individual injury in fact—which Plaintiffs
18 here cannot—may nonetheless “assert only a violation of [their] own rights.” Virginia v.
19 Am. Booksellers Ass’n, 484 U.S. 383, 392 (1988). Here, Plaintiffs’ claims rest entirely on
20 the rights of third parties—the rights of non-parties whose votes allegedly were not
21 counted, and the right of the presidential candidates to have Arizona’s electors awarded
22 to the candidate who received the highest number of votes. Plaintiffs themselves have not
23 alleged and cannot claim to have suffered any individualized harm or violation of their
24 own rights, and thus lack standing to pursue their claim.
25 2. Plaintiffs’ Equal Protection, Due Process, and “Widespread
Fraud” Claims Likewise Fail for a Lack of Article III Standing
26 (Counts II-IV).
27 The standing principles that doom Plaintiffs’ lead claim for violations of the Elections
28 and Electors Clause also foreclose their claims in Counts II-IV for violations of the Equal

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1 Protection Clause, the Due Process Clause, and “Widespread Fraud” (presumably in
2 violation of Arizona common law, although the complaint is unclear on that point, among
3 others). The common thread in each of these claims is that Plaintiffs’ votes were diluted
4 because Arizona counties counted some votes Plaintiffs contend were “illegal” and failed
5 to count some votes Plaintiffs contend were “legal.” But courts have rejected the notion
6 that the generalized grievance of alleged vote dilution provides private plaintiffs like
7 those here with a right of action. Bognet, 2020 WL 6686120, at *11 (“This
8 conceptualization of vote dilution—state actors counting ballots in violation of state
9 election law—is not a concrete harm under the Equal Protection Clause of the Fourteenth
10 Amendment.”); Nolles v. State Comm. for Reorganization of Sch. Dists., 524 F.3d 892,
11 900 (8th Cir. 2008) (voters lacked standing to allege substantive due process claim
12 regarding implementation of new election law where they failed to allege particularized
13 injury); Wood v. Raffensperger, No. 1:20-cv-04651, 2020 WL 6817513, at *5 (N.D. Ga.
14 Nov. 20, 2020) (“This is a textbook generalized grievance.”); Moore v. Cicosta, No. 1:20-
15 cv-911, 2020 WL 6063332, at *14 (M.D.N.C. Oct. 14, 2020) (“[T]he notion that a single
16 person’s vote will be less valuable as a result of unlawful or illegal ballots being cast is
17 not a concrete and particularized injury in fact necessary for Article III standing.”).
18 There is a good reason for this standing principle that precludes private plaintiffs
19 from challenging governmental action or inaction that impacts the public generally:
20 otherwise, any enterprising conspiracy theorist with a Twitter following could run a
21 GoFundMe campaign to challenge the results of an election. Basic principles of standing
22 foreclose the notion that private plaintiffs such as those here can unilaterally choose to
23 pursue the extraordinary measure of putting the results of a presidential election in the
24 hands of the jury that would be responsible for adjudicating these claims if they somehow
25 were to proceed to a trial on the merits.
26 D. Laches bars Plaintiffs’ claims.
27 Even if they have standing (they don’t), the doctrine of laches bars Plaintiffs’
28 claims because they have unreasonably delayed bringing their claims to the detriment of

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1 not only the defendants, but also the millions of voters in Arizona who voted in this last
2 election. Danjaq LLC v. Sony Corp., 263 F.3d 942, 951 (9th Cir. 2001) (“To demonstrate
3 laches, the ‘defendant must prove both an unreasonable delay by the plaintiff and
4 prejudice to itself.’”).
5 In the election context, the Ninth Circuit has regularly dismissed claims brought
6 after elections based on laches, “lest the granting of post-election relief encourage
7 sandbagging on the part of wily plaintiffs.” Soules v. Kauaians for Nukolii Campaign
8 Comm., 849 F.2d 1176, 1180 (9th Cir. 1988). This is because of “the extremely disruptive
9 effect of election invalidation and the havoc it wreaks upon local political continuity.” Id.
10 Thus, “if aggrieved parties, without adequate explanation, do not come forward before
11 the election, they will be barred from the equitable relief of overturning the results of the
12 election.” Id. (emphasis added).
13 Even when plaintiffs bring pre-election claims, they must do so sufficiently before
14 the election. This Court has repeatedly dismissed pre-election claims based on laches
15 when plaintiffs did not promptly bring their claims upon discovery of those claims. See,
16 e.g., League of Women Voters of Arizona v. Reagan, No. CV-18-02620-PHX-JAT, 2018
17 WL 4467891, at *8 (D. Ariz. Sept. 18, 2018) (dismissing a claim brought “less than three
18 months” before the election); Arizona Libertarian Party v. Reagan, 189 F. Supp. 3d 920,
19 921 (D. Ariz. 2016) (dismissing an election claim brought 18 days before the relevant
20 deadline); Arizona Pub. Integrity All. Inc. v. Bennett, No. CV-14-01044-PHX-NVW,
21 2014 WL 3715130, at *2 (D. Ariz. June 23, 2014) (dismissing an election claim brought
22 two weeks before the relevant deadline); Arizona Minority Coal. for Fair Redistricting v.
23 Arizona Indep. Redistricting Comm’n, 366 F. Supp. 2d 887, 909 (D. Ariz. 2005)
24 (dismissing claim when plaintiffs had “ample opportunity” to bring the claim sooner).
25 Plaintiffs unreasonably delayed bringing their claims not only until after the
26 election, but almost a month after Election Day. This delay is manifestly unreasonable
27 and ample grounds for dismissal under Ninth Circuit precedent.
28

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1 In Count II, which purports to state a claim under the Equal Protection Clause and
2 28 U.S.C. § 1983, Plaintiffs argue that Arizona election officials improperly violated their
3 “right to be present and have actual observation and access to the electoral process as
4 secured by the Equal Protection Clause of the United States Constitution and Arizona
5 law.” Doc. 1, ¶¶ 118, 120. Paragraphs 43-53 of Plaintiffs’ complaint also parade through
6 a laundry list of grievances regarding alleged “Violations of Arizona Election Law,” Doc.
7 1, ¶¶ 43-53, all of which are incorporated by reference in each of plaintiffs’ claims. Id. ¶
8 103, 112, 124, 135. The allegations focus on the process used to match signatures on
9 absentee ballots during the election, id. ¶¶ 46-48, the role of poll watchers and poll
10 referees during the election, id. ¶¶ 48-49, alleged “irregularities” in the operation of
11 Dominion Voting Machines during the election, id. ¶¶ 50-52, and the certification of the
12 Dominion machines, id. ¶ 53. As Plaintiffs acknowledge, nearly all of these practices
13 were in place on or before Election Day, and even the one post-election practice Plaintiffs
14 challenge, the recent recertification of post-election logic and accuracy test of Maricopa
15 County’s Dominion machines on November 18, id. ¶ 53, occurred almost three weeks
16 ago.
17 Plaintiffs do not claim knowledge that any of these practices led to counting a
18 single illegal vote or discounting a single legal vote in Arizona. And they provide no
19 explanation why they are raising these issues now, more than a month after the election
20 was completed, when their own complaint reveals they were aware of their grievances on
21 or before Election Day.
22 Specifically, Plaintiffs have known about Dominion voting machines for months.
23 See Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 838 (9th Cir. 2002) (the
24 delay is “measured from the time the plaintiff knew or should have known about its
25 potential cause of action”). Throughout their Complaint, Plaintiffs allege that the
26 Dominion machines perpetuated errors and fraud based on “publicly available evidence,”
27 (Doc. 1, ¶ 21), including that (1) in 2018, an expert witness testified about Dominion’s
28 vulnerabilities, (see id. ¶ 72-73); (2) on January 24, 2020, Texas opted not to use

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1 Dominion due to the possibility of fraud, (see id. ¶ 67, Ex. 11); and (3) on October 22,
2 2020, the Northern District of Georgia issued an order as to Dominion voting machines,
3 (see id. ¶ 69). By Plaintiffs’ own repeated admission, they have long been on notice of
4 these alleged irregularities.
5 Similarly, regarding any issues Plaintiffs take with their “right to be present and
6 have actual observation and access to the electoral process as secured by the Equal
7 Protection Clause of the United States Constitution and Arizona law,” Doc. 1, ¶ 118, the
8 opportunity to observe the electoral process arose in October—when counties began to
9 tabulate early ballots—and continued through the canvass. See, e.g., A.R.S. § 16-550(B);
10 Jessica Suerth, “Arizona Early Ballots in [the] 2020 Election Are Being Counted”, KGW8
11 (Oct. 20, 2020).6
12 In sum, Plaintiffs have offered no justifiable explanation for their delay in pursuing
13 their claims. Nor could they. From the face of the Complaint, it is clear they were well
14 aware of many of these issues well before Election Day, and all the rest of them no later
15 than Election Day. Indeed, plaintiff Ward is the Chair of the Arizona Republican Party
16 and the Plaintiff in the separate, ongoing election contest proceeding in Arizona State
17 Court. Apart from their apparent tactical interest in scuttling the certified results of the
18 election in Arizona, plaintiffs simply have no defensible basis for their delay.
19 Nor can there be any doubt that plaintiffs’ delay—if it somehow resulted in their
20 desired relief of decertifying the Arizona election results and awarding Arizona’s electors
21 to the losing candidate instead of the winning candidate, as their proposed order asserts it
22 should—would prejudice both defendants and the nearly 3.4 million Arizonans who cast
23 their votes in the election. In assessing prejudice, courts in election cases consider
24 “prejudice to the courts, candidates, citizens who signed petitions, election officials, and
25 voters.” Reagan, 189 F. Supp. 3d at 923 (Sotomayor v. Burns, 199 Ariz. 81, 13 P.3d
26 1198, 1200 (2000); Mathieu v. Mahoney, 174 Ariz. 456, 851 P.2d 81, 85 (1993)). As the
27
6
https://www.kgw.com/article/news/politics/elections/arizona-ballots-counted-2020-
28 election-biden-trump-kelly-mcsally/75-96f7a64f-18d8-425d-91b0-c721f96fe6bb.
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 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 14 of 25

1 State’s primary elections official, it is the Secretary’s duty to ensure that elections are
2 conducted in a manner that fulfills the will of Arizona voters. She did so, and plaintiffs
3 should not be permitted to challenge that reality by asserting these bogus claims well after
4 the election was completed. The Electoral College meets less than one week after the
5 hearing on this motion, on December 14, 2020. Because of plaintiffs’ delays, it is no
6 longer feasible that this case could proceed through a trial on the merits and any related
7 appeals before electors must cast their votes. Granting Plaintiffs’ requested preliminary
8 relief would thus effectively deprive defendants and Arizona voters of their right to
9 defend against these claims on the merits, while rewarding plaintiffs for their tactical
10 delay. Such a result would be untenable and cannot be squared with any conception of
11 the doctrine of laches.
12 E. Plaintiffs’ conspiracy theories fail to meet basic pleading standards.
13
Because Plaintiffs’ claims fail on procedural grounds for lack of jurisdiction, based
14
on the application of the doctrine of laches, and for lack of standing, the Court need not
15
reach the merits to dismiss the case with prejudice and deny the TRO application and
16
request for preliminary injunctive relief as moot. Nonetheless, should the Court address
17
the merits, the substance of Plaintiffs’ allegations provides even more reasons for
18
dismissing all their claims with prejudice. Distilled to their essence, Plaintiffs’ allegations
19
underlying each of their claims are grounded on the following theories, each of which has
20
fundamental and insurmountable flaws:
21
1. There Are No Plausible Allegations That Dominion Voting
22 Systems Machines Were Hacked in Arizona.

23 Plaintiffs offer the affidavit of an anonymous witness who claims to have had ties

24 to long-dead Venezuelan dictator Hugo Chavez,7 and involvement in rigging elections in

25 that country. Doc. 1, Ex. 1. Plaintiffs’ lead (albeit anonymous) witness acknowledges

26
7
Hugo Chavez died on March 5, 2013. William Neuman, Chavez Dies, Leaving Sharp
27 Divisions in Venezuela, N.Y. Times Mar. 6, 2013, available at
https://www.nytimes.com/2013/03/06/world/americas/hugo-chavez-of-venezuela-
28 dies.html.
{00526133.1 } -13-
 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 15 of 25

1 having little knowledge of the electoral process in the United States: “I have not
2 participated in any political process in the United States, have not supported any candidate
3 for office in the United States, am not legally permitted to vote in the United States, and
4 have never attempted to vote in the United States.” Id. ¶ 3. The witness claims to have
5 witnessed the creation and operation of a voting systems company called “Smartmatic,”
6 and claims this system was used to manipulate elections in favor of Chavez and his
7 successor, Nicolas Maduro. Id. ¶¶ 7-19. The witness also claims this system was used to
8 rig elections throughout Latin America. Id. ¶ 20. This witness further claims that
9 descendants of this “Smartmatic” system are now “in the DNA” of voting software
10 systems used in the United States, including Dominion Voting Systems, such that they
11 could be exploited by unscrupulous persons seeking to manipulate election results. Id.
12 ¶¶ 21-22.
13 According to this supposed anonymous witness, on Election Day, “vote counting
14 was abruptly stopped in five states using Dominion software” when “Donald Trump was
15 significantly ahead in the votes.” Id. ¶ 26. Plaintiffs’ anonymous lead witness continues
16 by asserting that “during the wee hours of the morning … something significantly
17 changed,” such that “[w]hen the vote reporting resumed the very next morning there was
18 a very pronounced change in favor of the opposing candidate, Joe Biden.” Id.
19 This is a preposterous claim even in states where large batches of votes for
20 President-Elect Biden were reported in the days after Election Day. But plaintiffs have
21 no plausible basis for alleging this transpired in Arizona. On election night, President-
22 Elect Biden had a relatively substantial lead due to favorable results in early voting, and
23 was declared the victor in the state by Fox News and the Associated Press. Erik Wemple,
24 Arizona Calls Vindicate Fox Decision Desk, Wash. Post, Nov. 13, 2020, available at
25 https://www.washingtonpost.com/opinions/2020/11/13/arizona-calls-vindicate-fox-
26 news-decision-desk/. His lead narrowed in subsequent days due to President Trump’s
27 relatively favorable results among votes cast on Election Day, before the remaining
28 networks called the election in President-Elect Biden’s favor once it became clear the

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 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 16 of 25

1 margin exceeded 10,000 votes and was not subject to reasonable dispute. Id. The
2 professed “alarm[]” plaintiffs’ anonymous lead witness claims to have experienced with
3 respect to the Arizona election results, Cmplt. Exh. 1 ¶ 26, is utterly nonsensical.
4 With that, Plaintiffs’ allegations regarding Dominion Voting Systems machines in
5 Arizona fall apart. While Plaintiffs allege that such machines (like all computers) could
6 be hacked and manipulated, they make no plausible allegation that Dominion machines
7 in Arizona were hacked and manipulated. And while Plaintiffs devote twenty-three pages
8 of their complaint to allegations of potential vulnerabilities of Dominion machines and
9 software, id. ¶¶ 63-101, and six pages to the antipathy of a single Dominion employee
10 towards President Trump, id. ¶¶ 94-101, they offer no plausible connection whatsoever
11 between these allegations and any impact on the results of the election in Arizona.
12 2. Plaintiffs’ Allegations Regarding “Unreturned Absentee
Ballots” and Out-of-State Voters Provide No Basis for
13 Overturning the Election Results.
14 The primary statistical theory underlying Plaintiffs’ claim that there were a
15 sufficient number of illegal votes counted and legal votes uncounted to overturn the
16 results of the election is based on the analysis of two so-called experts, Dr. William M.
17 Briggs (a self-proclaimed “Statistician to the Stars!,” Cmplt. Exh. 2), who in turn states
18 that his opinions are based entirely on survey data provided by someone named Matt
19 Braynard. Compl. Ex. 2, at 1.
20 But who is Matt Braynard? Exhibit 3 to the complaint consists of a series of
21 printouts of Twitter posts from someone named Matt Braynard. Otherwise, neither
22 plaintiffs nor Dr. Briggs offer anything whatsoever about Braynard’s identify,
23 qualifications, the methodologies used in his surveys, whether those methodologies
24 comported with the standards required for considering a survey reliable, the steps taken
25 to ensure his samples were random and representative of the underlying population, or
26 the steps taken to account for possible inaccuracies or falsehoods provided in survey
27 responses. Dr. Briggs does not even cite any basis for his assumption that there were
28 518,860 “unreturned absentee ballots” in Arizona. Id. at 1.

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 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 17 of 25

1 The single-page printout of Arizona-specific data appended to Dr. Briggs’ report

2 (which, presumably, was among the “data provided by Matt Braynard”) further
3 undermines the plausibility of Dr. Briggs’ assertions. Cmplt, Exh. 2A. This page indicates
4 that survey respondents were asked whether they requested an absentee ballot “in
5 Arizona,” and that the 35.56% of respondents who answered “no” were deemed to have
6 received a ballot without requesting one—even though an Arizona voter who requested
7 an absentee ballot while attending school out-of-state or living on a military base abroad
8 would have properly answered “no” to the question as posed. From the results of this
9 fatally poorly drafted survey, Dr. Briggs even more inexplicably leaps to the conclusion
10 that 35.56% of the “unreturned absentee ballots” in Arizona should be invalidated, that
11 more than 208,333-229,937 ballots were “troublesome,” and that the results of the
12 election should be overturned. Exh. 1 at 1; Cmplt. ¶¶ 54-55. Simply describing Briggs’
13 “analysis” demonstrates its utter nonsense and implausibility.
14 Dr. Briggs’ so-called “Error 2,” upon which he asserts that somewhere between
15 78,714 and 94,975 votes of Arizonans should be invalidated, bears no closer relationship
16 to plausible reality. Cmplt. ¶ 56 & Exh. 2. These figures are based on respondents to Mr.
17 Braynard’s surveys who were listed (in some undisclosed data set derived from some
18 undisclosed data source, but put that aside) as having an “unreturned absentee ballot,” but
19 who responded “yes” when asked whether they had mailed their ballot. Dr. Briggs does
20 nothing to account for various reasons a person may have answered “yes”—perhaps they
21 dropped their ballot in drop box or voted in-person absentee, and answered “yes” even
22 though such ballots were not counted in whatever database Mr. Braynard used as
23 “returned by mail”; maybe they answered “yes” because they mailed back their ballot,
24 but did not do it in a timely fashion such that it would be properly counted; or conceivably
25 some of these respondents to this survey conducted on November 15-17, 2002, two weeks
26 after the election, lied or misremembered. Nor does Dr. Briggs even suggest there is any
27 reason to believe these ballots predominantly favored Trump rather than Biden. Yet,
28 plaintiffs implausibly assert this “analysis” serves as a basis for overturning the election.

{00526133.1 } -16-
 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 18 of 25

1 Plaintiffs’ assertion that the Court could plausibly conclude that 5,790 absentee
2 votes were “illegal” based on voters filing notices of change of address in advance of the
3 election is equally ridiculous. Again, this assertion is based solely on a Twitter post by
4 someone named Matt Braynard—for whom Plaintiffs offer no evidence of any
5 qualifications or methodologies or anything else. Plaintiffs completely disregard the fact
6 that voters may change their mailing address for reasons wholly consistent with their right
7 to continue voting in Arizona—e.g., a 19 year old from Pima County attending college
8 out of state may have elected to retain their Arizona residence in voting status, while
9 receiving their personal mail at school; similarly, a service member from Maricopa
10 County may have been transferred from one deployment to another, while properly
11 remaining an Arizona voter throughout. Plaintiffs make no allegation that could provide
12 a plausible basis for concluding a single one of the address changes they characterize as
13 “illegal votes” was in fact “illegal.”
14 3. Plaintiffs’ Allegations Regarding “Statistical Impossibilities”
Provide No Basis for Overturning the Election Results.
15
16 Plaintiffs further ask the Court to cast aside more than 160,000 votes of Arizonans,
17 and thereby reverse the results of the election as determined by the will of nearly 3.4
18 million voters, based on what they describe as “historically unprecedented” turnout levels
19 and “statistically significant” results favoring President-Elect Biden in unspecified
20 counties using Dominion Voting Machines. Cmplt. ¶ 19 D-E. One of plaintiffs’ so-called
21 experts, Russell Ramsland, asserts there was “an improbable, and possibly impossible
22 spike in processed votes” in Maricopa and Pima Counties at 8:46 p.m. on November 3,
23 2020. Cmplt. ¶ 60 & Exh. 17. Mr. Ramsland’s affidavit indicates he has a business and
24 technical background that includes experience with election systems, but he does not
25 profess to have any expertise in political science, election operations and logistics, the
26 timing of election returns, or the manner in which ballots are processed in the State of
27 Arizona. Id. Ex. 17. He apparently was wholly ignorant of (or omitted) the fact that
28 Arizona begins processing early ballots before the election, such that the results of early

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 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 19 of 25

1 ballots in Pima and Maricopa Counties shortly after the polls closed was unsurprising.
2 Mr. Ramsland’s speculation that these results were the product of a multi-national
3 conspiracy, rather than the counting of validly cast ballots, is utterly implausible. And
4 while Plaintiffs submit affidavits from other witnesses who profess their surprise at the
5 election results, none of them offers any plausible basis for questioning the election
6 results.
7 4. Plaintiffs’ Allegations Regarding Alleged Violations of Arizona
Election Laws Provide No Basis for Overturning the Election.
8
9 Finally, plaintiffs allege various violations of Arizona election law at the county level
10 in connection with the administration of the Arizona election. Cmplt. ¶¶ 46-52. Plaintiffs
11 do not allege that the Secretary was responsible for any of these alleged violations, as
12 would be required to hold her responsible for “widespread fraud” (Count IV), or as
13 individually responsible for the constitutional violations alleged in counts I-III. Nor do
14 Plaintiffs allege any of these alleged violations resulted in counting a sufficient number
15 of illegal votes or discounting a sufficient number of legal votes to call into question the
16 results of the election.
17 In short, even if accepted as true solely for purposes of considering a motion to
18 dismiss, the allegations of Plaintiffs’ complaint do not provide any plausible basis for the
19 relief they seek, i.e., overturning the results of the 2020 presidential election in Arizona.
20 F. The Court Should Dismiss This Case on Preclusion Principles.
21
Plaintiffs are barred from re-adjudicating their issues here under the doctrine of
22
collateral estoppel, or issue preclusion. Issue preclusion “applies when an issue was [1]
23
actually litigated in a previous proceeding, there was [2] a full and fair opportunity to
24
litigate the issue, [3] resolution of the issue was essential to the decision, a [4] valid and
25
final decision on the merits was entered, and there is [5] common identity of the
26
parties.” Ludwig v. Arizona by & through Brnovich, 790 F. App’x 849, 851 (9th Cir.
27
2019) (quoting Hullett v. Cousin, 63 P.3d 1029, 1034 (Ariz. 2003)).
28

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 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 20 of 25

1 All of these requirements are satisfied here. As discussed, at issue in the Maricopa
2 County Superior Court elections contest was whether election officials engaged in
3 misconduct warranting that the election be annulled and set aside for failure to allow legal
4 observers to “fully observe” proceedings. See Ward Complaint ¶¶ 21-23, 26, 37; see also
5 Ward v. Jackson, Proposed Findings of Fact and Conclusions of Law ¶ 11. Plaintiffs raise
6 this same issue in their complaint. Compl. ¶¶ 15, 118, 120. The Maricopa County
7 Superior Court clearly denied relief on this theory on the record during an evidentiary
8 hearing, after briefing and argument. Under Arizona law, “a party precluded from
9 litigating an issue … is also precluded from doing so with another, provided there was
10 full and fair opportunity to litigate the issue in the first action.” Gilbert v. Ben-Asher, 900
11 F.2d 1407, 1410 (9th Cir. 1990); see also Campbell v. SZL Properties, Ltd., 62 P.3d 966,
12 968 (Ariz. Ct. App. 2003) (holding that if “the first four elements of collateral estoppel
13 are present, Arizona permits defensive … use of the doctrine”). Having fully availed
14 herself of the opportunity to litigate her “misconduct” claim in state court—and lost—Dr.
15 Ward cannot join with her fellow presidential electors in this suit to obtain a second bite
16 at the apple.8
17 G. The Eleventh Amendment Bars Plaintiffs’ claims.
18 Plaintiffs’ claims face yet another insurmountable hurdle: the Eleventh
19 Amendment. As the Supreme Court held in Pennhurst State School & Hospital v.
20 Halderman, the Eleventh Amendment bars federal courts from granting “relief against
21 state officials on the basis of state law, whether prospective or retroactive.” 465 U.S. 89,
22 106 (1984). This bar applies even where plaintiffs disguise their state law claims as
23 federal causes of action. See, e.g., Massey v. Coon, No. 87-
24 8
If the Court declines to dismiss the case outright on the grounds that the claims raised
25 by Plaintiffs can only be brought in state court in an election contest it should, at the very
least, abstain from hearing the case on federalism and comity grounds and dismiss on that
26 basis. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727–30 (1996) (affirming the
power of federal courts to dismiss under abstention doctrines absent a mandatory duty to
27 award relief). Plaintiffs ask for an unprecedented intrusion into state sovereignty by a
federal court. Under the Burford, Colorado River, and Pullman doctrines of abstention,
28 Plaintiffs’ claims should be resolved in a state forum.
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 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 21 of 25

1 3768, 1989 WL 884, at *2 (9th Cir. Jan. 3, 1989) (affirming dismissal where “on its face
2 the complaint states a claim under the due process and equal protection clauses of the
3 Constitution, [but] these constitutional claims are entirely based on the failure of
4 defendants to conform to state law”); Balsam v. Sec'y of New Jersey, 607 F. App'x 177,
5 183 (3d Cir. 2015) (applying bar to state law claims “premised on violations of the federal
6 Constitution”); Thompson v. Alabama, No. 2:16-CV-783-WKW, 2017 WL 3223915, at
7 *8 (M.D. Ala. July 28, 2017) (bar applies where federal constitutional claims rest on
8 failure to enforce state law, as “[t]he true nature of this ‘remedy’ sounds in state law”).
9 Try though they might to disguise their claims as federal causes of action, Plaintiffs
10 cannot escape the Eleventh Amendment. Count IV, for example, is captioned merely as
11 “Wide-Spread Ballot Fraud.” But even a cursory review of Count IV’s allegations makes
12 clear that this count stems from violations of Arizona law, not federal constitutional or
13 statutory law. Plaintiffs allege that certification must be enjoined because “there were
14 intentional violations of multiple provisions of Arizona law,” Cmplt. ¶ 141, and (mis)cite
15 to an Arizona Supreme Court decision about Arizona remedies for violations of Arizona
16 election statutes, Cmplt. ¶ 138. Plaintiffs’ other counts fare little better. Count II claims
17 violations of the Equal Protection Clause—but those violations are premised on a failure
18 to comply with state elections law, such as the right to observe. Cmplt. ¶ 118. And,
19 perplexingly, Count II again relies on the ability to contest elections under Arizona law.
20 Compl. ¶ 123. Count I alleges that Defendants violated the Elections and Electors Clauses
21 by somehow exercising their powers in a way that “conflict[s] with existing legislation”
22 enacted by the Arizona legislature—again hinging on whether state law was violated.
23 Compl. ¶ 106.9 And Count III alleges a Due Process Clause violation premised on a
24 failure to comply with Arizona law on ballot security and transport and the resulting
25 “dilution” of Plaintiffs’ votes. Cmplt. ¶ 132 (citing A.R.S. § 16-608). The relief Plaintiffs
26
27 9
Count I, in what appears to be a botched cut-and-paste job, also cites to several
provisions of the VRA and HAVA, but does not allege violations of either statute.
28 See Cmplt. ¶ 106(i–iv).

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 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 22 of 25

1 seek thus “conflicts directly with the principles of federalism that underlie the Eleventh
2 Amendment.” Pennhurst, 465 U.S. at 106.
3 H. Plaintiffs’ Requested TRO and Preliminary Injunction Should be
Denied as Moot and In Any Event Are Without Merit.
4
5 Plaintiffs’ requested TRO and motion for preliminary injunctive relief should be
6 denied for the same reasons the motion to dismiss should be granted, as well as on
7 separate and independent grounds that the Court need only consider if the motion to
8 dismiss is denied. As this Court has ruled, “‘the standard for issuing
9 a temporary restraining order is identical to that for issuing a preliminary
10 injunction.’” Compass Bank v. Lovell, No. CV-16-00538-PHX-DJH, 2016 WL 8738244,
11 at *4 (D. Ariz. Apr. 8, 2016) (quoting Taylor-Failor v. Cty. of Hawaii, 90 F. Supp. 3d
12 1095, 1098 (D. Haw. 2015)). In any case, a TRO and request for preliminary injunction
13 is “‘an extraordinary remedy never awarded as a matter of right.”” Id. (quoting Winter v.
14 Natural Res. Defense Council, 555 U.S. 7, 24 (2008)). That is all the more so here, where
15 Plaintiffs seek this to employ this always-extraordinary remedy to obtain sweeping and
16 unprecedented relief that would overturn the results of the Arizona election, award the
17 state’s electors to the certified loser of the election instead of the winner, and thereby
18 disenfranchise nearly 3.4 million Arizona voters.
19 “’To obtain a preliminary injunction, a party must show that ‘he is likely to succeed
20 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
21 relief, that the balance of equities tips in his favor, and that an injunction is in the public
22 interest.’” Id. (quoting Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir.
23 2014)). Id. Plaintiffs fail to make any of the required showings.
24 1. Plaintiffs’ Claims Have No Likelihood of Success.
25 Here, Plaintiffs have no likelihood of success on their claims—as discussed above,
26 the claims should be dismissed. But even if any of Plaintiffs’ claims were adequately
27 alleged, Plaintiffs have not put forward any evidence to suggest they could ever prove (let
28 alone likely prove) their claim that the election results in Arizona were the product of a

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 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 23 of 25

1 multi-national and multi-state conspiracy—rather than the validly cast votes of

2 Arizonans.
3 The legal deficiencies in and facial implausibility of Plaintiffs’ claims is further
4 compounded by their evidentiary failures. Plaintiffs ask the Court to grant their requested
5 relief based on anonymous affidavits. But anonymous affidavits are inadmissible and
6 may not be considered by the Court, as 28 U.S.C § 1746 requires a statement verified “by
7 the person” making it. Having not even identified any persons who may have provided
8 several of the affidavits supporting their claims, Plaintiffs cannot rely on their purported
9 testimony. See Cmplt, Exhs. 1 (anonymous declaration relating to Smartmatic voting
10 machines and Venezuela), 4 (anonymous declaration from purported statistician), and 12
11 (anonymous affidavit from someone identified only as “Spider”).
12 Plaintiffs also have submitted a series of purported “expert reports” that, their
13 complaint alleges, serve as “conclusive evidence” that the results of the presidential
14 election in the State of Arizona should be overturned. Cmplt., Exhs. 2-2.F (Briggs), 3
15 (Braynard), 10 4 (anonymous statistician), 9 (Keshel), 12 (Spider) and 17 (Ramsland).
16 None of these purported “reports” meets the minimal requirements for an expert report
17 that may be considered under Fed. R. Civ. P. 26(a)(2). Plaintiffs have not provided the
18 data and information considered in forming their opinions as required by Rule 26, or
19 disclosed the terms of any funding they may be receiving in connection with their
20 opinions as required by Rule 26.
21 This evidentiary failure is starkly illustrated by Dr. Briggs, who has submitted a
22 four-page report that Plaintiffs offer in support of their challenge to more than 300,000
23 Arizona votes. But Dr. Briggs simply makes calculations that, he states, are based entirely
24 on “survey data” that “was provided by Matt Braynard.” Cmplt, Exh. 2 at 1. Mr. Braynard,
25
10
26 The disclosure regarding purported expert Matt Braynard consists entirely of a printout
of four Tweets, accompanied with what appears to be a typewritten transcription of a fifth
27 Tweet. Cmplt, Exh. 3. There is no disclosure of Mr. Braynard’s curriculum vitae,
qualifications, experience, opinions, methodologies, data and materials considered,
28 sources of any funding received in connection with his expert services.
{00526133.1 } -22-
 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 24 of 25

1 however, has not offered his own expert report, and Dr. Briggs has disclosed nothing
2 whatsoever about Mr. Braynard’s survey—he has not identified the methodologies that
3 were used, shown that he and other persons who conducted his survey had the
4 qualifications and experience required to conduct a survey in accordance with those
5 methodologies, or disclosed the data that was used in and produced by this supposed
6 survey. The report plaintiffs have submitted from Dr. Briggs thus, on its face, has no
7 conceivable evidentiary value. And Plaintiffs’ other experts likewise have failed to
8 provide the basic data and information needed to assess their opinions and whether they
9 are of any potential evidentiary value.
10 2. Plaintiffs’ Requested Relief Would Result in Enormous
Prejudice to Arizona Voters.
11
12 Any consideration of the relative harm and prejudice that would result from
13 Plaintiffs’ requested relief also must lead to denial of their motion. Because Plaintiffs
14 waited until more than a month after the November election to pursue their claims their
15 proclaimed emergency is of their own making. Moreover, denial of their requested relief
16 would, at most, result in the potential dilution of these Plaintiffs’ votes. As discussed
17 above, a claimed generalized grievance of “vote dilution” is not even a cognizable
18 individual injury that confers standing. Bognet, 2020 WL 668120, at *11-14 Wood v.
19 Raffensperger, No. 1:20-cv-04651, 2020 WL 6817513, at *5 (N.D. Ga. Nov. 20, 2020).
20 By contrast, the requested relief would cause enormous harm to Arizonans, supplanting
21 the will of nearly 3.4 million voters reflected in the certified election results and
22 potentially imperiling Arizona’s participation in the Electoral College. It would be
23 difficult to envision a case in which the balance of hardships would tip more strongly
24 against a plaintiff.
25 IV. CONCLUSION
26 Plaintiffs seek unprecedented relief: overturning a presidential election and
27 disenfranchising nearly 3.4 million Arizona voters—and doing so through a proposed
28 TRO and preliminary injunction no less. They do so based on anonymous affiants, facially

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 Case 2:20-cv-02321-DJH Document 40 Filed 12/04/20 Page 25 of 25

1 unqualified so-called experts, and an implausible claimed conspiracy. For the reasons
2 stated herein, the Court should dismiss plaintiffs’ application for TRO and motion for
3 preliminary injunctive relief, and award the Secretary her attorneys’ fees and other
4 appropriate relief.
5 Respectfully submitted this 4th day of December, 2020.
6 SUSMAN GODFREY L.L.P.
7
By s/ Justin A. Nelson
8 Justin A. Nelson
Stephen E. Morrissey
9 Stephen Shackelford
10 Davida Brook
COPPERSMITH BROCKELMAN PLC
11
Roopali H. Desai
12 D. Andrew Gaona
Kristen Yost
13
Attorneys for Defendant Arizona Secretary of
14 State Katie Hobbs
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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