Clerk of the Superior Court

*** Electronically Filed ***

T. Hays, Deputy
11/26/2022 5:21:42 PM
Filing ID 15177440

1 D. Andrew Gaona (028414)

COPPERSMITH BROCKELMAN PLC
2 2800 North Central Avenue, Suite 1900
Phoenix, Arizona 85004
3 T: (602) 381-5486
[email protected]
4
5 Sambo (Bo) Dul (030313)
STATES UNITED DEMOCRACY CENTER
6 8205 South Priest Drive, #10312
Tempe, Arizona 85284
7 T: (480) 253-9651
[email protected]
8
9 Attorneys for Defendant
Arizona Secretary of State Katie Hobbs
10
ARIZONA SUPERIOR COURT
11
MARICOPA COUNTY
12
) No. CV2022-015455
13 ABRAHAM HAMADEH, an individual; and)
REPUBLICAN NATIONAL COMMITTEE, a)
14 federal political party committee, ) ARIZONA SECRETARY OF STATE
) KATIE HOBBS’ MOTION TO
15 Plaintiffs/Contestants, ) DISMISS STATEMENT OF
) ELECTION CONTEST
16 v. )
)
17 KRIS MAYES, ) (Oral Argument Requested)
)
18 Defendant/Contestee, ) (Assigned to Hon. Frank Moskowitz)
)
19 and )
)
20 KATIE HOBBS, in her official capacity as the)
Secretary of State; et al., )
21 )
Defendants. )
22 )
23
24
25
26

1144355.5
1 Introduction & Background
2 In this “election contest,” Plaintiffs/Contestants Abraham Hamadeh and the Republican
3 National Committee (“RNC”) ask this Court to overturn the results of the 2022 General Election.
4 In that election, based on the counties’ unofficial results after tabulation, the people of Arizona
5 chose Kris Mayes as their next Attorney General by a narrow margin of 510 votes. Plaintiffs’
6 requested relief – declaring Hamadeh the winner of that race – is extreme, unfounded, and
7 unavailable. An election contest must rest on facts known to Plaintiffs when a contest is filed,
8 not wild speculation aimed at undermining the work of Arizona’s election officials.
9 Though state and county election officials should be commended for their hard work,
10 diligence, and integrity in administering the 2022 General Election, like all elections that came
11 before it and all elections that will follow it, this election was not perfect – after all, elections are
12 administered by humans. But that is emphatically not a reason for this Court to thwart the will
13 of the people as expressed at the ballot box, which is precisely what Plaintiffs ask this Court to
14 do. Arizona courts apply “all reasonable presumptions” in “favor [of] the validity of an election,”
15 Moore v. City of Page, 148 Ariz. 151, 159 (App. 1986), presumptions that Plaintiffs’ threadbare
16 allegations cannot overcome.
17 First, Plaintiffs’ entire “contest” fails in perhaps the most fundamental way possible
18 because Plaintiffs brought it far too early. This defect alone justifies its dismissal.
19 Second, Plaintiffs’ allegations related to election day issues in Maricopa County (Count
20 I) fail from the get-go because they do not establish “misconduct,” and allege that the maximum
21 universe of potentially affected voters is 419, which cannot change the outcome of the election.
22 Third, Plaintiffs’ claims about Maricopa County’s alleged failure to issue provisional
23 ballots (Count II) and inaccurate ballot duplications and electronic adjudications (Counts III and
24 IV, respectively) across all counties are based entirely on speculation. Plaintiffs’ “mere suspicion
25 and conjecture” cannot sustain an election contest. Hunt v Campbell, 19 Ariz. 254, 264 (1917).
26 And because the Court need not accept Plaintiffs’ “inferences or deductions that are not

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1 necessarily implied by well-pleaded facts” and “unreasonable inferences or unsupported
2 conclusions,” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389 ¶ 4 (App. 2005), these claims fail
3 as a matter of law. Beyond that, Plaintiffs’ requested relief for Count II – that an unknown
4 number of unknown voters be allowed to cast provisional ballots weeks after election day – is
5 not authorized by law (to say nothing of being unfair and likely unconstitutional).
6 Fourth, Plaintiffs’ claim that an unidentified and unknowable number of early ballots
7 constituted “illegal votes” because of an alleged conflict between A.R.S. § 16-550(A) and the
8 2019 Election Procedures Manual (“EPM”) fails for any number of reasons. It was brought far
9 too late (Plaintiffs knew about the EPM provision for years, and only complained about it when
10 Hamadeh lost his election), it fails as a matter of law (a voter’s “registration record” includes
11 more than just the registration form), and, like Counts II-IV, it’s based on pure speculation.
12 Finally, the Court should not defer ruling on these fundamental legal deficiencies to
13 permit Plaintiffs to do any discovery. They filed this litigation to try and find proof to support
14 their claims, and that’s simply not how election contests work. The best evidence of this
15 improper intent is their decision to name all county recorders and county boards of supervisors
16 when they have no evidence of any alleged issues anywhere other than Maricopa County. The
17 Court shouldn’t reward Plaintiffs’ attempted fishing expedition or tolerate their scattershot
18 approach to this litigation.
19 Argument
20 Plaintiffs’ election contest fails, and the Court should quickly dismiss it. But the Secretary
21 recognizes that election contests are rare, and first provides the Court with some background and
22 fundamental principles underlying this dispute.
23 To survive a motion to dismiss, an election contest must be based on well-pleaded facts,
24 rather than on legal conclusions. See Hancock v. Bisnar, 212 Ariz. 344, 348 ¶ 17 (2006)
25 (assessing election contest under Rule 8(a) notice pleading requirements); Griffin, 86 Ariz. at
26 169-70 (election contest subject to dismissal if it fails to state a claim upon which relief can be

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1 granted, assessed using the criteria applicable under Rule 12(b)(6)). “A complaint that states
2 only legal conclusions, without any supporting factual allegations, does not satisfy Arizona’s
3 notice pleading standard under Rule 8,” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417. 419 ¶ 7
4 (2008), and the Court may not accept as true “inferences or deductions that are not necessarily
5 implied by well-pleaded facts, unreasonable inferences or unsupported conclusions from such
6 facts, or legal conclusions alleged as facts.” Jeter, 211 Ariz. at 389 ¶ 4.
7 “[E]lection contests are purely statutory, unknown to the common law, and are neither
8 actions at law nor suits in equity, but are special proceedings.” Griffin v. Buzard, 86 Ariz. 166,
9 168 (1959). They are thus the subject of deliberate legislative restriction because of a “strong
10 public policy favoring stability and finality of election results.” Ariz. City Sanitary Dist. v. Olson,
11 224 Ariz. 330, 334 ¶ 12 (App. 2010) (cleaned up). And A.R.S. § 16-672(A) carefully
12 circumscribes the valid grounds of a contest: (1) “misconduct” by election boards and
13 canvassers; (2) the elected official was ineligible for the contested office; (3) the contested
14 official gave a “bribe or reward” or “committed any other offense against the elective franchise”;
15 (4) “illegal votes”; or (5) because of an “erroneous count of votes,” the elected official didn’t
16 “receive the highest number of votes.” The Legislature also provided that the exclusive remedies
17 in election contests are (1) judgment confirming the election; (2) judgment annulling and setting
18 aside the election for the contested race; (3) a declaration that the certificate of election of the
19 person whose office is contested is of no further legal force or effect and that a different person
20 secured the highest number of legal votes and is elected. A.R.S. § 16-676(B), (C). The Court
21 lacks jurisdiction to grant any other form of relief.
22 Plaintiffs also must prove their entitlement to the extraordinary remedy of overturning
23 election results against several important backstops:
24 • Arizona courts apply “all reasonable presumptions” in “favor [of] the validity of an
25 election,” Moore, 148 Ariz. at 159;
26 • the “returns of the election officers are prima facie correct,” Hunt, 19 Ariz. at 268; and

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1 • courts apply a presumption of “good faith and honesty of the members of the election
2 board” that must control unless there is “clear and satisfactory proof” to the contrary, id.
3 All told, to obtain relief in this case, Plaintiffs must overcome all these presumptions and
4 make either “a showing of fraud or . . . a showing that had proper procedures been used, the
5 result would have been different.” Moore, 148 Ariz. at 159. Because Plaintiffs “are not . . .
6 alleging any fraud” [Stmt. ¶ 1], to state a valid election contest, Plaintiffs must allege facts
7 sufficient to show “the result would have been different.”
8 With this background in mind, we turn to each of Plaintiffs’ deficient claims.
9 I. This “Election Contest” Fails Because it Is Premature.
10 To begin, the Court should dismiss this action because it is premature and violates A.R.S.
11 § 16-672 and 16-673. There is no question that an election contest cannot be brought until after
12 the statewide canvass and after the challenged candidate has been declared elected, neither of
13 which has occurred. See A.R.S. § 16-672(A) (“Any elector of the state may contest the election
14 of any person declared elected to a state office”) (emphasis added); A.R.S. § 16-673(A) (“The
15 elector contesting a state election shall, within five days after completion of the canvass of the
16 election and declaration of the result thereof by the secretary of state or by the governor, file in
17 the court in which the contest is commenced a statement in writing”) (emphasis added). The
18 Court can dismiss this action for this obvious reason – which should have been obvious to
19 experienced election law attorneys like Plaintiffs’ – alone. See Donaghey v. Att’y Gen., 120 Ariz.
20 93, 95 (1978) (“The failure of a contestant to an election to strictly comply with the statutory
21 requirements is fatal to his right to have the election contested.”). 1
22 1
As more evidence of Plaintiffs’ inexplicable failure to observe the strictures of the election
23 contest statutes, the RNC is not an “elector of the state” entitled to bring an election contest,
A.R.S. § 16-672(A), yet Plaintiffs’ counsel signed a pleading in which the RNC is a contestant.
24 The RNC should thus be dismissed. The Court should not overlook these fundamental
25 deficiencies and should examine why Plaintiffs’ counsel brought an election contest that violates
two basic provisions of the governing statutes without even considering the merits (or as here,
26 the sheer lack thereof).

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1 II. Plaintiffs Do Not Allege a Viable Election Contest Based on Election Day Issues in
Maricopa County.
2
3 Plaintiffs first contend (Count I) that there was either an erroneous count of votes or

4 election board misconduct because “[u]pon information and belief,” “various poll workers across

5 Maricopa County refused or failed to ‘check out’ some or all . . . voters” who checked in at vote

6 centers with printer problems on election day but did not cast their ballots there, thereby

7 allegedly preventing provisional or early ballots those voters submitted elsewhere from being

8 tallied. [Stmt. ¶¶ 60-63] They allege that “at least 146 of those voters” submitted provisional

9 ballots that weren’t counted, that at least 273 other voters who tried to cast their early ballots did

10 not have their ballots counted, and that poll workers who did not “check out” these voters

11 engaged in “misconduct.” [Id. ¶¶ 62-64] According to Plaintiffs – again, only “upon information

12 and belief” – votes that Maricopa County “improperly failed to tabulate are material to, and

13 potentially dispositive of, the outcome of the election for . . . Arizona Attorney General.” [Id.]

14 Plaintiffs go out of their way to state that they “are not, by this lawsuit, alleging any fraud,

15 manipulation or other intentional wrongdoing.” [Stmt. ¶ 1] Further, and fatal to their claims, the

16 election day issues they identify are also not “misconduct” under the election contest statutes. 2

17 Here again, the “returns of the election officers are prima facie correct,” and courts apply a

18 presumption of “good faith and honesty of the members of the election board” that must control

19 unless there is “clear and satisfactory proof.” Hunt, 19 Ariz. at 268. But more importantly,

20
2
And Plaintiffs also allege no facts supporting an “erroneous count” as to Count I. No Arizona
21
decision explains precisely what an “erroneous count” claim encompasses, but both its plain
22 language and common sense make clear that it relates to the miscounting of votes on ballots by
election officials. For example, if 100 ballots were cast and a correct count would have led to 48
23 votes for Candidate A, 46 votes for Candidate B, and 6 votes for Candidate C in the contested
24 race but officials counted the votes on those 100 ballots incorrectly (because of, for example, an
equipment or aggregation error that counted all 6 votes for Candidate C for one of the other
25 candidates), that would constitute an “erroneous count.” Nothing about the statute suggests that
this contest ground is implicated by Plaintiffs’ allegations about Maricopa County election day
26
issues, which don’t allege any error in vote counting.

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1 “honest mistakes or mere omissions on the part of the election officers” are not enough to
2 establish “misconduct.” Findley v. Sorenson, 35 Ariz. 265, 269 (1929). That there were
3 unintentional errors with printer settings and that poll workers may have unintentionally made
4 errors with voter “check ins” and “check outs” is simply not “misconduct” as a matter of law.
5 See Aguilera v. Fontes, No. CV 2020-014562, 2020 WL 11273092, at *4 (Ariz. Super. Ct. Nov.
6 30, 2020) (“A flawless election process is not a legal entitlement under any statute, EPM rule,
7 or other authority[.] Rather, a perfect process is an illusion.”).
8 Even if Plaintiffs could prove that the election day errors in Maricopa County amount to
9 “misconduct” or led to an “erroneous count” (which they did not and cannot do), those errors
10 could not have changed the outcome of the election. The maximum number of voters implicated
11 by Plaintiffs’ allegations is 419, an insufficient number in the aggregate to show that the “result
12 would have been different.” But that, of course, assumes that all 419 of these unidentified and
13 unknown voters would have cast a ballot for Hamadeh. And the Court simply cannot make such
14 a sweeping and dangerous assumption. When, as here, a plaintiff claims that certain voters were
15 deprived of an opportunity to cast a ballot, courts cannot rely on evidence that a voter would
16 have voted for a particular candidate. This is for good reason:
17 it would be an uncertain and dangerous experiment to attempt the task of
ascertaining and giving effect to their intentions, as ballots actually cast and
18
returned. Uncertain, because it would be simply a matter of speculation;
19 dangerous, because it would give to such electors the power of determining the
result of an election, in a close contest. All that it would be necessary for them to
20 do, in such a case, to decide the election, would be to declare that they intended to
21 vote for a particular candidate. It would enable them to sell the office to the
candidate offering the highest price for it, because they would not be called upon
22 for their declaration until a contest arose, after the actual ballots had been counted,
and the precise effect of their statement known.
23
24 Babnew v. Linneman, 154 Ariz. 90, 93 (App. 1987) (quotation omitted). The Court thus cannot
25 – and should not – indulge any arguments about alleged voter intent and dismiss this Count.
26

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1 III. Plaintiffs’ Counts II-IV Are Speculative and Should Be Dismissed.
2 Next, Count II-IV should all be dismissed because they rest on speculation, and there is
3 no plausible allegation that the errors complained of would have any effect on the outcome of
4 this race. All should be dismissed.
5 Plaintiffs fail to support Counts II-IV with “well-pleaded facts,” instead relying on the
6 following conclusory allegations:
7 • In Count II, Plaintiffs allege that Maricopa County denied “certain voters” their right to
8 cast a provisional ballot, and that “[u]pon information and belief,” this error was “material
9 to, and potentially dispositive of, the outcome of the election for the office of Arizona
10 Attorney General.” [Stmt. ¶¶ 68-73]
11 • In Count III, Plaintiffs allege that “the counties’ Ballot Duplication Boards have
12 incorrectly transcribed a material number of voters selections in the race for Arizona
13 Attorney General.” [Id. ¶ 77] The only alleged fact anywhere in Plaintiffs’ Statement that
14 could even remotely relate to this claim is that in the 2020 presidential race, a small
15 sampling of Maricopa County ballots had an apparent error rate of 0.37% in duplication.
16 [Id. ¶ 36]
17 • In Count IV, Plaintiffs allege that “the counties’ Electronic Adjudication Boards have
18 incorrectly recorded a material number of voters selections in the race for Arizona
19 Attorney General.” [Id. ¶ 83] The only alleged fact anywhere in Plaintiffs’ Statement that
20 could even remotely relate to this claim is that the statutory hand count audit of the
21 Governor’s race in Maricopa County revealed a single electronic adjudication error. [Id.
22 ¶ 44] Plaintiffs then declare on “information and belief” that “a similar and proportionate
23 rate of erroneous determinations” would affect the Attorney General race. [Id. ¶ 45]
24 All three of these claims turn on Plaintiffs’ rank speculation both that these alleged errors
25 occurred, and that they occurred in numbers sufficient to affect the outcome of the Attorney
26 General’s race. This cannot satisfy Plaintiffs’ burden, and almost certainly violates Rule 11,

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1 Ariz. R. Civ. P., and A.R.S. § 12-349. Plaintiffs, quite literally, have no idea that any of these
2 errors occurred at all with votes cast for Attorney General, and they certainly have no idea how
3 many votes were affected. There isn’t a shred of credible factual support for any of these claims,
4 and this Court cannot credit Plaintiffs’ wild “inferences or deductions that are not necessarily
5 implied by well-pleaded facts” and “unreasonable inferences or unsupported conclusions.” Jeter,
6 211 Ariz. at 389 ¶ 4.
7 Applied here, it is unreasonable to simply presume that a “material number” of voters in
8 Maricopa County were denied provisional ballots (Count II). It is unreasonable to presume that
9 a “material number” of ballots across all fifteen counties suffer from ballot duplication errors
10 affecting the race for Attorney General in 2022 because two years ago, there were some errors
11 found in a single race in a single county (Count III). And it is unreasonable to presume that a
12 “material number” of ballots across all fifteen counties suffer from electronic adjudication errors
13 affecting the race for Attorney General because a single ballot in a single county had such an
14 error in a different race altogether (Count IV). If fanciful allegations of this sort could support
15 an election contest claim, every election would be subject to challenge by anyone unhappy with
16 the result. But they don’t; indeed, election contests must rest on facts, not “mere suspicion and
17 conjecture,” Hunt, 19 Ariz. at 264, which could never be enough to overcome the presumptive
18 validity of the election returns, Moore, 148 Ariz. at 159. As a result, the Court should also dismiss
19 Counts II-IV.
20 IV. Plaintiffs’ Requested Relief as to Count II Is Legally Unsupported
21 As to Count II, Plaintiffs also seek extraordinary relief – allowing some unidentified and
22 unknown number of voters to cast provisional ballots weeks after election day. Such relief falls
23 well outside the Court’s jurisdiction in an election contest.
24 To begin, there is no statutory basis for the requested relief, which does not appear among
25 the remedies listed in A.R.S. § 16-676. By enumerating the relief the court may grant, A.R.S. §
26 16-676 also serves to limit the court’s discretion to fashion other remedies. See McNamara v.

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1 Citizens Protecting Tax Payers, 236 Ariz. 192, 196 ¶ 13 (App. 2014) (noting that where “a statute
2 expressly provides a particular remedy or remedies, a court must be [wary] of reading others into
3 it.”) (cleaned up).
4 The requested relief would also require the court to invent, from whole cloth, an election
5 schedule and process different from the ones established by Title 16, which no court is
6 empowered to do. Plaintiffs’ proposed remedy also implicates the concerns that animated the
7 Arizona Supreme Court’s decision in Babnew, discussed above. Allowing a self-identified
8 subset of the electorate an opportunity to essentially cast their votes after the fact—once the gap
9 between the candidates is known—would be a “dangerous experiment” that would amplify the
10 potential and incentives for dishonesty and manipulation. Babnew, 154 Ariz. at 93. Indeed,
11 Arizona’s law setting strict timelines for the release of election results – and imposing criminal
12 penalties for any premature release of results – was crafted to avoid this precise scenario where
13 election results are known to the public, and could influence voter behavior, before the close of
14 voting. See A.R.S. § 16-551(C); 2019 EPM, Ch. 12(I).
15 V. Plaintiffs’ Claims About Early Ballot Signature Verification Are Barred by Laches
and Legally Baseless.
16
17 Finally, Plaintiffs contend (Count V) – again, based solely “on information and belief” –
18 that there were an unidentified number of “illegal votes” cast because “a material number of
19 early ballots” were validated by county recorders across the state based on a signature match
20 from “an election-related document that was not the voter’s ‘registration record,’ such as a prior
21 early ballot affidavit of early ballot request form.” [Stmt. ¶ 90] This claim rests on Plaintiffs’
22 presumption that a voter’s “registration record” is narrowly limited to a voter’s registration form,
23 and further on the idea that any provision of the EPM that authorizes early ballot validation based
24 on other “specimen[s]” is invalid and unenforceable. [Id. ¶¶ 90-91] Again, Plaintiffs say on
25 “information and belief” that these ballots – a number they do not identify – “is material to, and
26 potentially dispositive of, the outcome of the election for the office of Arizona Attorney

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1 General.” [Id. ¶ 93] And they ask for an order “proportionally reducing the tabulated returns of
2 early ballots to exclude early ballots” validated in alleged violation of the law. [Id. ¶ 94] Count
3 V fails for multiple, independent reasons.
4 A. Laches.
5 To begin, the equitable doctrine of laches bars Count V. Laches “seeks to prevent dilatory
6 conduct and will bar a claim if a party’s unreasonable delay prejudices the opposing party or the
7 administration of justice.” Lubin v. Thomas, 213 Ariz. 496, 497 ¶ 10 (2006). Plaintiffs check off
8 all the boxes. Plaintiffs waited years to challenge this practice and provision of the EPM, their
9 delay is unreasonable, and that delay causes significant prejudice to our elections system, the
10 Courts, and above all, voters whom Plaintiffs ask this Court to disenfranchise.
11 In deciding whether a plaintiff’s delay is unreasonable, a court should consider “the
12 justification for the delay, the extent of the plaintiff’s advance knowledge of the basis for the
13 challenge, and whether the plaintiff exercised diligence[.]” Arizona Libertarian Party v. Reagan,
14 189 F. Supp. 3d 920, 923 (D. Ariz. 2016) (citation omitted). And here, Plaintiffs knew or should
15 have known of this practice since at least 2019, when the EPM was approved by the Secretary,
16 Governor, and Attorney General and thus obtained the force and effect of law. In fact, the
17 Secretary’s office put out a summary document describing the updates in the 2019 EPM that
18 called out this provision. 3 Courts uniformly reject challenges to election procedures like this
19 brought only after an election.
20 Indeed, “[c]hallenges concerning alleged procedural violations of the election process
21 must be brought prior to the actual election.” Sherman v. City of Tempe, 202 Ariz. 339, 342 ¶ 9
22 (2002) (citation omitted). Here, rather than seeking relief as to this alleged conflict between the
23 statute and EPM years or even months ago, Plaintiffs waited until after the election (and after
24 Hamadeh lost his race) to sue. But “by filing their complaint after the completed election,”
25
https://azsos.gov/sites/default/files/Summary_Updates_to_Draft_2019_Elections_Procedures_
3
26
Manual.pdf (at p. 5).

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1 Plaintiffs “essentially ask [the Court] to overturn the will of the people, as expressed in the
2 election.” Sherman, 202 Ariz. at 342 ¶ 11. The Court should thus reject Plaintiffs’ attempt to
3 “subvert the election process by intentionally delaying a request for remedial action to see first
4 whether they will be successful at the polls.” McComb v. Superior Court In & For Cty. Of
5 Maricopa, 189 Ariz. 518, 526 (App. 1997) (quotation omitted).
6 Plaintiffs’ belated claim – brought after all votes have been counted – also causes
7 significant prejudice to voters. Many Arizonans’ early ballots were validated and tabulated based
8 on the challenged EPM provision, and throwing their votes out after-the-fact in service of
9 Plaintiffs’ speculative claim would disenfranchise those voters. And while Arizona law generally
10 requires early voters whose signatures cannot be verified receive notice and an opportunity to
11 “cure” those signatures, A.R.S. § 16-550(A) (giving voters five business days after an election
12 with a federal race to cure signature issues), the unidentified voters implicated by Plaintiffs’
13 arguments here would have no such opportunity. Sotomayor v. Burns, 199 Ariz. 81, 83 ¶ 9 (2000)
14 (finding claims barred by laches and considering fairness to the parties, the court, “election
15 officials, and the voters of Arizona”). 4 This would treat similarly situated voters differently and
16
17 4
Count V, which seeks to invalidate an unspecified number of early ballots – after the election
and based on alleged signature verification deficiencies – is also little more than a belated and
18 improper attempt to challenge early ballots in violation of Arizona’s early ballot challenge laws.
19 Under Arizona law, efforts to challenge – and, thereby, invalidate – early ballots must be brought
by designated political party challengers before the affidavit envelope is opened and the ballot
20 removed from the envelope for tabulation. See A.R.S. § 16-552(D). Further, challenged voters
must be provided notice and an opportunity to be heard before their early ballots can be
21
invalidated based on an early ballot challenge. A.R.S. § 16-552(E). And finally, a challenger’s
22 allegation that the affidavit signature does not match the voter’s signature in the registration
record – despite the county recorder’s determination that the signatures do match – is not a valid
23 basis for an early ballot challenge. A.R.S. §§ 16-552(D) & 16-591; McEwen v. Sainz, No. CV-
24 22-163 (Santa Cruz Cty. Sup Ct.), Aug. 22, 2022 Minute Entry Order (“Signature verification is
a function and responsibility of the County Recorder’s office and not the bas[i]s for an early ballot
25 challenge”) (attached as Exhibit 1). Yet Plaintiffs here seek to invalidate untold numbers of early
ballots, disenfranchising untold numbers of voters, in direct contravention of all these legal
26
requirements and guardrails. The Court should swiftly reject this unlawful effort.

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1 violate both the equal protection and due process rights of voters who would not receive the
2 benefit of the statutory cure period. See Bush v. Gore, 531 U.S. 98, 104-05 (2000) (“Having once
3 granted the right to vote on equal terms, the State may not, by later arbitrary and disparate
4 treatment, value one person’s vote over that of another.”).
5 Beyond that, “[t]he real prejudice caused by delay in election cases is to the quality of
6 decision making in matters of great public importance,” and “[t]he effects of such delay extend
7 far beyond the interests of the parties. Waiting until the last minute to file an election challenge
8 ‘places the court in a position of having to steamroll through the delicate legal issues in order to
9 meet the [applicable] deadline[s].’” Sotomayor, 199 Ariz at 83 ¶ 9. (citation omitted). Late
10 filings, such as Plaintiffs’, “deprive judges of the ability to fairly and reasonably process and
11 consider the issues . . . leaving little time for . . . wise decision making.” Id.
12 In sum, Plaintiffs’ delay in challenging this EPM provision prejudices county election
13 officials, the Secretary, and above all else, Arizona voters. Laches thus precludes their Count V.
14 B. Merits.
15 Even if not barred by laches, Plaintiffs’ Count V claims and their challenge to the EPM
16 provision about early ballot signature verification are legally baseless. “A party attacking the
17 validity of an administrative regulation has a heavy burden.” Watahomigie v. Ariz. Bd. of Water
18 Quality Appeals, 181 Ariz. 20, 24 (App. 1994). An agency’s rulemaking powers “are measured
19 and limited by the statute creating them,” Caldwell v. Arizona State Bd. of Dental Examiners,
20 137 Ariz. 396, 398 (App. 1983), and courts will not invalidate a regulation “unless its provisions
21 cannot, by any reasonable construction, be interpreted in harmony with the legislative
22 mandate.” Watahomigie, 181 Ariz. at 25. Plaintiffs fail to carry their heavy burden here.
23 1. Plaintiffs’ interpretation of A.R.S. § 16-550 contradicts the statute’s
text and legislative history.
24
25 A.R.S. § 16-550(A) requires the county recorder to compare the signature on early ballot
26 affidavits with the signature in the voter’s “registration record.” Consistent with this

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1 requirement, the 2019 EPM, at page 68, specifies that, besides the voter’s registration form, the
2 county recorder “should also consult additional known signatures from other official election
3 documents in the voter’s registration record, such as signature rosters or early ballot/PEVL
4 request forms,” when conducting early ballot signature verification. 5 Plaintiffs’ erroneous
5 argument [Stmt. ¶ 91] that this EPM provision conflicts with A.R.S. § 16-550(A) assumes that
6 the statutory reference to a voter’s “registration record” is narrowly limited to the registration
7 form or some other singular document. But that assumption is contrary to both the plain text and
8 legislative history of A.R.S. § 16-550(A).
9 Nothing in the plain text of A.R.S. § 16-550(A) limits the county recorder’s review to the
10 voter registration form; nor does A.R.S. § 16-550(A) or any other law prohibit county recorders
11 from consulting other official documents in the voter’s registration record when verifying early
12 ballot affidavit signatures. Indeed, if, as Plaintiffs insist, the Legislature wanted to restrict the
13 county recorder’s review to the registration form alone, it knows how to do so because that’s
14 exactly what the law said before the Legislature explicitly amended it. Before 2019, A.R.S. §
15 16-550(A) required the county recorder to compare the signature on early ballot affidavits to
16 “the signature of the elector on his registration form.” But in 2019, the Legislature amended
17 A.R.S. § 16-550(A) to replace the reference to “the signature of the elector on his registration
18
19
5
The Governor and Attorney General approved this EPM provision in 2019. And when the
Secretary submitted an updated 2021 EPM for approval under A.R.S. § 16-452, the Attorney
20 General retained Tim La Sota – Plaintiffs’ co-counsel here – to review the draft for legal
compliance. Mr. La Sota objected to several provisions, demanding removal of close to a third
21
of the manual, and the Attorney General ultimately refused to approve the 2021 EPM based on
22 those alleged legal deficiencies. Yet Mr. La Sota and the Attorney General did not object to the
signature verification provision at issue. See 12/9/2021 Letter from T. La Sota to K. Hobbs &
23 Excerpted Exhibit (attached as Exhibit 2) (full document available at
24 https://www.azag.gov/sites/default/files/2021-12/Letter%20%26%20redline.pdf). In any case,
even the objections Mr. La Sota raised were rejected in a failed legal action brought by the
25 Attorney General to force the Secretary to accept his demanded changes. See Brnovich v. Hobbs,
No. P1300CV2022200269 (Yavapai Cnty. Super. Ct.), June 17, 2022 Under Advisement Ruling
26
and Order (attached as Exhibit 3).

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1 form” with today’s construction referencing “the elector’s registration record.” S.B. 1054, 54th
2 Leg., 1st Reg. Sess. (Ariz. 2019). When interpreting a statute, “each word, phrase, clause, and
3 sentence must be given meaning so that no part . . . will be void, inert, redundant, or trivial.” Ariz.
4 Dep’t of Revenue v. S. Point Energy Ctr., LLC, 228 Ariz. 436, 441 ¶ 18 (App. 2011) (citation
5 omitted). Here, the Legislature acted to expressly expand the county recorder’s review from just
6 the “registration form” to documents in the “registration record.” The Court should reject
7 Plaintiffs’ baseless effort to undo or render this legislative amendment meaningless.
8 2. Plaintiffs’ interpretation would lead to absurd results.
9 As the state’s Chief Election Officer, the Secretary must maintain the statewide voter
10 registration database, which contains the voter registration record of all Arizona voters. See
11 A.R.S. § 16-142; EPM, Ch. 1(IV)(A). These registration records in the voter registration
12 database often include not just the voter’s registration form, but also other – more recent –
13 documents associated with the voter’s registration and voting activity, such as the signature
14 roster or electronic poll book signatures, early ballot request forms, active early voting list
15 request forms, and early ballot affidavits from prior elections. That a voter’s registration record
16 includes other documents beyond the registration form is apparent from the Legislature’s usage
17 of the term “registration record” in other parts of Title 16. See, e.g., A.R.S. § 16-153(A) (allowing
18 certain voters to protect from public disclosure their personal identifying information, “including
19 any of that person’s documents and voting precinct number contained in that person’s voter
20 registration record” (emphasis added)); A.R.S. § 16-168(F) (protecting “the records containing
21 a voter’s signature” within a voter’s registration record (emphasis added).
22 Indeed, for long-time registered voters, the registration form in the voter’s record may be
23 decades old, and their signature may degrade or change over time, as reflected in more recent
24 official documents in the registration record. Plaintiffs’ insistence that officials may only consult
25 the registration form – and not any other official documents in the voter’s registration record –
26 both defies the plain text and legislative history of A.R.S. § 16-550(A) and would lead to absurd

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1 results. Counties would have to reject early ballots based on signature comparison to an outdated
2 exemplar while ignoring more recent signatures available in the voter’s registration record.
3 Further, Plaintiffs’ argument would absurdly lead to some voters being required to cure their
4 signature for every early ballot they cast or face disenfranchisement because the county,
5 according to Plaintiffs, must always compare the voter’s early ballot affidavit signature to their
6 decades-old registration form, despite knowing that the voter’s signature has changed based on
7 recent documents in the registration record. The Court should reject Plaintiffs’ erroneous and
8 nonsensical reading of the law. Green Cross Med., Inc. v. Gally, 242 Ariz. 293, 297 ¶ 11 (App.
9 2017) (courts “will not interpret a statute in a manner that would lead to an absurd result.”).
10 C. Speculation.
11 Even if Plaintiffs’ claims in Count V were not barred by laches (they are) and even if
12 those claims had any basis in law (they do not), like the four counts before it, Count V also fails
13 because it is based entirely on speculation. As with “misconduct” and “erroneous count of
14 votes,” a contest based on “illegal votes” requires the contestant to prove (1) that illegal votes
15 were cast and (2) that those illegal votes “were sufficient to change the outcome of the election.”
16 Moore, 148 Ariz. at 156. Plaintiffs don’t – and obviously can’t – allege a single fact to support
17 this claim. This fundamental failure independently dooms these claims. Cullen, 218 Ariz. at 419
18 ¶ 7 (“A complaint that states only legal conclusions, without any supporting factual allegations,
19 does not satisfy Arizona’s notice pleading standard under Rule 8”) (cleaned up).
20 Beyond that, however, Plaintiffs provide no principled way for the Court to even consider
21 this claim and the remedy Plaintiffs seek. Plaintiffs cavalierly ask this Court to “proportionally
22 reduc[e] the tabulated returns of early ballots to exclude early ballots” validated in alleged
23 violation of the law. [Stmt. ¶ 94] But they don’t allege how many early ballots were validated
24 using a signature exemplar on something other than a voter registration form, and they could
25 never prove what that number is because the counties have no data that could ever show which
26 signature exemplar was used to verify a particular ballot. And this should go without saying, but

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1 it would be impracticable for counties to re-do early ballot signature verification at this stage.
2 Granting Plaintiffs’ request would therefore require the Court to: (1) guestimate how many early
3 ballots would have been rejected had counties applied Plaintiffs’ absurd interpretation of A.R.S.
4 § 16-550(A); and then (2) guestimate how these voters would have voted in the Attorney
5 General’s race to “proportionally reduce” the vote totals. The Court should reject Plaintiffs’
6 request to apply conjecture upon conjecture to overturn the election result.
7 ******
8 Count V fails and should be dismissed for any number of reasons, all of which should
9 have been obvious to Plaintiffs and their counsel before filing an election contest on this ground.
10 VI. The Election Contest Statutes Do Not Give Contestants Carte Blanche to Conduct
Discovery or Inspect Ballots.
11
12 As the Secretary notes throughout the Motion, Plaintiffs’ election contest is little more
13 than a claim in search of a factual basis. But an election contest is subject not only to Arizona’s
14 traditional pleading standards at a base level, but also to the presumptions and substantive
15 requirements that apply to such claims, making an election contest even harder to sustain (as it
16 should be given the important public policy concerns at issue).
17 At bottom, this case should proceed no further and be immediately dismissed. Plaintiffs
18 may seek an opportunity to inspect ballots pursuant to A.R.S. § 16-677 in hopes of securing
19 evidence to support their wishful thinking and speculation. This statute, however, should not be
20 read to allow such discovery if the election contest itself is not cognizable. Although no Arizona
21 appellate court has addressed the issue, courts have elsewhere held that election contests must
22 pass the pleading threshold to justify discovery. For instance, the Minnesota Supreme Court
23 recently denied a candidate the opportunity to inspect ballots under a similar law because of
24 deficiencies in the candidate’s election contest allegations. The candidate alleged that
25 “irregularities” in the conduct of the election and in the absentee ballot canvass “raised questions
26 over who received the largest number of votes legally cast in the election,” and argued that

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1 “transparency and public confidence in the integrity of the election require[d]” that she be
2 allowed to inspect the ballots and conduct discovery. Bergstrom v. McEwen, 960 N.W.2d 556,
3 558 & 566 (Minn. 2021) (internal quotation marks omitted). The court held that her pleading
4 included only speculative allegations unsupported by facts or evidence, and also held that the
5 complaint must first meet the pleading requirements before ballot inspection was permitted. Id.
6 at 565–66; see also Zahray v. Emricson, 182 N.E.2d 756, 757-58 (Ill. 1962) (“Equally certain is
7 the principle that the proceeding cannot be employed to allow a party, on mere suspicion, to have
8 the ballots opened and subjected to scrutiny to find evidence”). 6
9 Conclusion
10 Arizona has a “strong public policy favoring stability and finality of election results,”
11 Ariz. City Sanitary Dist, 224 Ariz. at 334 ¶ 12, which means that the judiciary must be wary of
12 interfering with presumptively valid election results. The burden on an election contestant is thus
13 exceedingly high, and here, is a burden that Plaintiffs failed to meet. For all the reasons discussed
14 above, the Court should dismiss Plaintiffs’ “election contest” with prejudice, and without leave
15 to amend. The Secretary further reserves her right to seek an award of fees against Plaintiffs and
16 their counsel under Rule 11, Ariz. R. Civ. P., and A.R.S. § 12-349.
17 Respectfully submitted this 26th day of November, 2022.
18 COPPERSMITH BROCKELMAN PLC
19
By /s/ D. Andrew Gaona
20 D. Andrew Gaona

21 STATES UNITED DEMOCRACY CENTER

22 Sambo (Bo) Dul
23
24 6
See also. Green v. Nygaard, 213 Ariz. 460, 466 ¶ 18 (App. 2006) (discovery rules are not meant
25 to enable “wild fishing expeditions”); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413,
425-26 (1st Cir. 2007) (“[P]laintiffs should not be permitted to conduct fishing expeditions in
26 hopes of discovering claims that they do not know they have.”)

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1 Attorneys for Defendant Arizona Secretary of State
Katie Hobbs
2
ORIGINAL efiled and served via electronic
3 means this 26th day of November, 2022, upon:
4 Honorable Frank Moskowitz
[email protected]
5
Kory Langhofer
6 Thomas Basile
Statecraft PLLC
7 649 North Fourth Avenue, First Floor
Phoenix, Arizona 85003
8 [email protected]
[email protected]
9 Attorneys for Plaintiffs/Contestants
10 Timothy A. La Sota
11 Timothy A. La Sota, PLC
2198 East Camelback Road, Suite 305
12 Phoenix, AZ 85016
[email protected]
13 Attorney for Plaintiffs/Contestants
14 Daniel C. Barr
15 Paul F. Eckstein
Alexis E. Danneman
16 Austin Yost
Samantha J. Burke
17 Perkins Coie LLP
18 2901 North Central Avenue
Suite 2000
19 Phoenix, AZ 85012
20 [email protected]
[email protected]
21 [email protected]
[email protected]
22 [email protected]
23 Attorneys for Kris Mayes

24 Joseph La Rue
Joe Branco
25 Karen Hartman-Tellez
Maricopa County Attorney’s Office
26 225 West Madison St.
Phoenix, AZ 85003

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1 [email protected]
[email protected]
2 [email protected]
[email protected]
3 Attorneys for Maricopa County
4 Celeste Robertson
Joseph Young
5 Apache County Attorney’s Office
245 West 1st South
6 St. Johns, AZ 85936
[email protected]
7 [email protected]
Attorneys for Defendant, Larry Noble, Apache County Recorder,
8 and Apache County Board of Supervisors
9 Christine J. Roberts
Paul Correa
10 Cochise County Attorney’s Office
P.O. Drawer CA
11 Bisbee, AZ 85603
[email protected]
12 [email protected]
Attorneys for Defendant, David W. Stevens, Cochise County Recorder,
13 and Cochise County Board of Supervisors
14 Bill Ring
Coconino County Attorney’s Office
15 110 East Cherry Avenue
Flagstaff, AZ 86001
16 [email protected]
Attorney for Defendant, Patty Hansen, Coconino County Recorder,
17 and Coconino County Board of Supervisors
18 Jeff Dalton
Gila County Attorney’s Office
19 1400 East Ash Street
Globe, AZ 85501
20 [email protected]
Attorney for Defendant, Sadie Jo Bingham, Gila County Recorder,
21 and Gila County Board of Supervisors
22 Jean Roof
Graham County Attorney’s Office
23 800 West Main Street
Safford, AZ 85546
24 [email protected]
Attorneys for Defendant, Wendy John, Graham County Recorder,
25 and Graham County Board of Supervisors
26 Scott Adams
Greenlee County Attorney’s Office
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1 P.O. Box 1717
Clifton, AZ 85533
2 [email protected]
Attorney for Defendant, Sharie Milheiro, Greenlee County Recorder,
3 and Greenlee County Board of Supervisors
4 Ryan N. Dooley
La Paz County Attorney’s Office
5 1320 Kofa Avenue
Parker, AZ 85344
6 [email protected]
Attorney for Defendant, Richard Garcia, La Paz County Recorder,
7 and La Paz County Board of Supervisors
8 Ryan Esplin
Mohave County Attorney’s Office Civil Division
9 P.O. Box 7000
Kingman, AZ 86402-7000
10 [email protected]
Attorney for Defendant, Kristi Blair, Mohave County Recorder,
11 and Mohave County Board of Supervisors
12 Jason Moore
Navajo County Attorney’s Office
13 P.O. Box 668
Holbrook, AZ 86025-0668
14 [email protected]
Attorney for Defendant, Michael Sample, Navajo County Recorder,
15 and Navajo County Board of Supervisors
16 Daniel Jurkowitz
Ellen Brown
17 Javier Gherna
Pima County Attorney’s Office
18 32 N. Stone #2100
Tucson, AZ 85701
19 [email protected]
[email protected]
20 [email protected]
Attorney for Defendant Gabriella Cázares-Kelley, Pima County Recorder, and Pima
21 County Board of Supervisors
22 Craig Cameron
Scott Johnson
23 Allen Quist
Jim Mitchell
24 Pinal County Attorney’s Office
30 North Florence Street
25 Florence, AZ 85132
[email protected]
26 [email protected]
[email protected]
- 20 -
1 [email protected]
Attorneys for Defendant, Dana Lewis, Pinal County Recorder,
2 and Pinal County Board of Supervisors
3 Kimberly Hunley
Laura Roubicek
4 Santa Cruz County Attorney’s Office
2150 North Congress Drive, Suite 201
5 Nogales, AZ 85621-1090
[email protected]
6 [email protected]
Attorneys for Defendant, Suzanne Sainz, Santa Cruz County Recorder,
7 and Santa Cruz County Board of Supervisors
8 Colleen Connor
Thomas Stoxen
9 Yavapai County Attorney’s Office
255 East Gurley Street, 3rd Floor
10 Prescott, AZ 86301
[email protected]
11 [email protected]
Attorney for Defendant, Michelle M. Burchill, Yavapai County Recorder,
12 and Yavapai County Board of Supervisors
13 Bill Kerekes
Yuma County Attorney’s Office
14 198 South Main Street
Yuma, AZ 85364
15 [email protected]
Attorney for Defendant, Richard Colwell, Yuma County Recorder,
16 and Yuma County Board of Supervisors
17
/s/ Diana Hanson
18
19
20
21
22
23
24
25
26

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 Exhibit 1
Exhibit 1
 Exhibit 2
Exhibit 2
 ARIZONA SECRETARY OF STATE
2021 ELECTIONS PROCEDURES MANUAL – OCTOBER 1, 2021 SUBMISSION

writing no later than 90 days prior to the election for which the exception is requested.

County Recorder Responsibilities

1. Signature Verification

Upon receipt of the return envelope with an early ballot and completed affidavit, a County
Recorder or other officer in charge of elections shall compare the signature on the affidavit with
the voter’s signature in the voter’s registration record. In addition to the voter registration form,
the County Recorder should also consult additional known signatures from other official election
documents in the voter’s registration record, such as signature rosters or early ballot/AEVL request
forms, in determining whether the signature on the early ballot affidavit was made by the same
person who is registered to vote.

• If satisfied that the signatures were made by the same person, the County Recorder shall
place a distinguishing mark on the unopened affidavit envelope to indicate that the
signature is sufficient and safely keep the early ballot and affidavit (unopened in the return
envelope) until they are transferred to the officer in charge of elections for further
processing and tabulation.

• If not satisfied that the signatures were made by the same person the County Recorder
shall make reasonable and meaningful attempts to: (1) contact the voter via mail, phone,
text message, and/or email; (2) notify the voter of the inconsistent signature; and (3) allow
the voter to correct or confirm the signature. The County Recorder shall attempt to contact
the voter as soon as practicable using any contact information available in the voter’s
record and any other source reasonably available to the County Recorder.

Voters must be permitted to correct or confirm an inconsistent signature until 5:00 p.m. on the fifth
business day after a primary, general, or special election that includes a federal office or the third
business day after any other election. For the purposes of determining the applicable signature cure
deadline: (i) the PPE is considered a federal election; and (ii) for counties that operate under a
four-day workweek, only days on which the applicable county office is open for business are
considered “business days.” Commented [A34]: See A.R.S. § 16-407.03. The proposed
regulations exceed the scope of the Secretary’s statutory
authorization or contravene an election statute’s purpose, and
If the early ballot affidavit is not signed, the County Recorder shall make reasonable and therefore cannot be approved. See Leach v. Hobbs, 483 P.3d 194,
198 ¶ 21 (Ariz. 2021) (“[A]n EPM regulation that exceeds the scope
meaningful attempts to contact the voter via mail, phone, text message, and/or email, to notify the of its statutory authorization or contravenes an election statute's
voter the affidavit was not signed and explain to the voter how they may cure the missing signature purpose does not have the force of law.”); McKenna v. Soto, 481
P.3d 695, 699 (2021).
or cast a replacement ballot before 7:00 p.m. on Election Day. The County Recorder shall attempt
to contact the voter as soon as practicable using any contact information available in the voter’s
record and any other source reasonably available to the County Recorder. Neither replacement
ballots nor provisional ballots can be issued after 7:00 p.m. on Election Day.

All early ballots, including ballots-by-mail and those cast in-person at an on-site early voting
location, emergency voting center, or through a special election board must be signature-verified
by the County Recorder. However, because voters who cast an early ballot in-person at an on-site

Page | 75
CHAPTER 2:
Early Voting — VI. Processing and Tabulating Early Ballots
 Exhibit 3
Exhibit 3