Ariz. Democratic Party & Democratic Nat'l Comm. v. Reagan, CV-16-03618-PHX-SPL

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Writing for the CourtHonorable Steven P. Logan United States District Judge
PartiesArizona Democratic Party and Democratic National Committee, Plaintiffs, v. Michele Reagan, Secretary of State, Defendant.
Docket NumberNo. CV-16-03618-PHX-SPL,CV-16-03618-PHX-SPL
Decision Date03 November 2016

Arizona Democratic Party and Democratic National Committee, Plaintiffs,
Michele Reagan, Secretary of State, Defendant.

No. CV-16-03618-PHX-SPL


November 3, 2016


Both the United States and the State of Arizona observe two things: (1) general elections are to take place on the Tuesday following the first Monday in November in a given even number year, see 2 U.S.C. § 1, 7; 2 U.S.C. § 3; Ariz. Const. art. VII, § 11; Ariz. Rev. Stat. § 16-211; and (2) "Columbus Day" is a recognized holiday that falls on the second Monday in the month of October, see 5 U.S.C. § 6103(a); Ariz. Rev. Stat. § 1-301(A)(12). While these well-established events are seemingly non-controversial, this election cycle, Arizona has managed a way to sift out some uncertainty.

Arizona law provides that "[n]o elector shall vote in an election... unless the elector has been registered to vote... and the registration has been received... prior to midnight of the twenty-ninth day preceding the date of the election." Ariz. Rev. Stat. § 16-120. Applying this calculation strictly, the Arizona voter registration deadline for the upcoming November 8, 2016 general election was set on the 29th day that preceded it - October 10, 2016, Columbus Day.

Plaintiffs the Arizona Democratic Party and Democratic National Committee

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("Committees") filed the instant lawsuit suing Defendant Michele Reagan in her official capacity as the Secretary of State ("Secretary" or "State"). (Doc. 1.) The Committees claim that the Secretary's decision not to extend the October 10, 2016 voter registration deadline, and to preclude certain voters whose registration applications were received on October 11, 2016 from voting in the November 8, 2016 general election, violated federal and state law, and imposed an unconstitutional burden on voters. The Committees request declaratory and injunctive relief. For the reasons that follow, the Court finds that the Committees prevail on the merits of their claims, in part, but concludes that they are not entitled to relief.


On February 10, 2016, the Secretary published its 2016 elections calendar on its website, listing October 10, 2016 as the "[v]oter registration deadline for General Election." (Doc. 15-1 at 4-11, ¶ 4; Hr'g Exh. 25 ¶ 4; Doc. 4-5 at 29-33; Hr'g Exh. 7.)2

Sometime in the months that followed, "at least one county asked [the Secretary's Office] for guidance" with respect to the voter registration deadline and the Columbus Day holiday. (Doc. 30, Hr'g Tr. 68:4-17.) As a result, on August 25, 2016, Eric Spencer ("Spencer"), State Elections Director, sent an email to all fifteen counties notifying them that although it was Columbus Day, the voter registration deadline would fall on October 10, 2016. (Doc. 15-1 at 4-11, ¶ 6; Hr'g Exh. 25 ¶ 6; Doc. 30, Hr'g Tr. 68:4-17.)

On August 26, 2016, the Secretary issued the Arizona 2016 General Election Publicity Pamphlet. (Docs. 4-5 at 40-167; Hr'g Exh. 9;3 Doc. 15-1 at 4-11, ¶ 6; Hr'g Exh. 25 ¶ 6.) See also Ariz. Rev. Stat. § 19-123(A) ("the secretary of state shall cause to be printed... a publicity pamphlet"). Following the Secretary's message to voters, the pamphlet provides in relevant part:

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DEADLINE: October 10 is the registration deadline for the 2016 General Election, if you are not already registered to vote.

REGISTER ONLINE: Register to vote online by using the EZ voter registration service at A valid Arizona driver's license or non-operating identification license is necessary.

PAPER REGISTRATION: Voter registration forms are available:
• From the Secretary of State's website (;
• By calling the Secretary of State's Office at 1-877-THE-VOTE (1-877-843-8683);
• By contacting your County Recorder's Office (listed on page 11); or
• At other government offices and public locations throughout the state.

*Paper forms must be received by your County Recorder or the Secretary of State's Office BEFORE 5:00 p.m., October 10, 2016. Please note, some County Recorder Offices may be closed on October 10 for Columbus Day; plan accordingly. Online registration is available through midnight on October 10.

(Doc. 4-5 at 44 (emphasis in original.) The pamphlet was posted on the Secretary's website and sent to each household with a registered voter. (Doc. 15-1 at 4-11, ¶ 5; Hr'g Exh. 25 ¶ 5.)

On September 19, 2016, Spencer Scharff ("Scharff"), Voter Protection Director for the Arizona Democratic Party, sent letters to all fifteen Arizona county recorders requesting that the deadline be extended to October 11, 2016 pursuant to Ariz. Rev. Stat. § 1-303, because certain voter registration methods would not be accessible to applicants on Columbus Day. (Doc. 5-1 at 4-4; Hr'g Exh. 12; Doc. 30, Hr'g Tr. 22:11-24:18.) Scharff sent a copy of those letters to Spencer. (Doc. 15-1 at 4-11; Hr'g Exh. 25; Doc. 30, Hr'g Tr. 22:15-22.) With the exception of Mohave County, all county recorders responded to Scharff informing him that they would not extend the registration deadline date "as determined by the Secretary of State." (Doc. 5-1 at 6, 8, 10, 12; Hr'g Exhs. 13-16; Doc. 5 ¶ 3.) The Mohave county recorder responded by email advising that it would extend the voter registration deadline to October 11, 2016 because they were one of the few counties whose offices would be closed on the holiday. (Doc. 5-1 at 14; Hr'g Exh. 17.)

On September 19, 2016, Arizona House Minority Leader Eric Meyer sent a letter

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to Arizona Attorney General Mark Brnovich requesting a formal opinion as to last day to submit voter registration to be eligible to vote in the general election. (Doc. 5-1 at 16-17; Hr'g Exh. 18.) The letter expressed that the deadline should be extended to October 11th pursuant to Ariz. Rev. Stat § 1-303. (Id.) On September 28, 2016, Deputy Solicitor General for the Arizona Attorney General's Office, Dominic Draye, responded to Meyer's letter, declining to issue an official attorney general opinion regarding the "policy decision" of the Secretary. (Doc. 5-1 at 19; Hr'g Exh. 19.)

In Arizona, residents may generally register to vote by one of the following methods: in-person at county recorder offices, Ariz. Rev. Stat. § 16-134; in-person through designated public assistance agencies, Ariz. Rev. Stat. §§ 16-134, 16-140; in-person at a Motor Vehicle Division ("MVD") office, Ariz. Rev. Stat. § 16-112; by mail, § 16-134; or online through the Service Arizona website, (Doc. 4-3 at 2-24; Doc. 4-4 at 1-24; Hr'g Exh. 4 at p. 36).

On October 10, 2016, post offices and MVD offices were closed. With the exception of Mohave County, all 14 county recorder offices were open and received in-person voter registration applications (Doc. 15-1 at 4-11, ¶¶ 17, 20; Hr'g Exh. 25 ¶¶ 17, 20.) Voter registration applications were received online via Service Arizona. The Secretary's office was open and received voter applications in-person and by email (to Spencer). (Doc. 15-1 at 4-11, ¶ 18; Hr'g Exh. 25 ¶ 18; Hr'g Exh. 22.) Pursuant to an agreement with the counties, one of the headquarters or field offices for each of the democratic and republican parties was open and received in-person voter registration applications which would be accepted by the counties the following day. (Doc. 30, Hr'g Tr. at 116:3-10 and 63:4-8; Doc. 15-1 at 4-11, ¶ 18; Hr'g Exh. 25 ¶ 18.)

On October 10th, however, there was a two-hour period of interruption on the voter registration website due to heavy traffic. Counsel for the Arizona Democratic Committee sent a letter to the Secretary concerning this issue and requesting that the voter registration deadline be extended to October 11, 2016. (Doc. 30, Hr'g Tr. 96:9-20, 98:10 - 99-18, 117:18-24; Hr'g Exhs. 21, 22.) Spencer, rather than the Secretary,

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responded by email, declining to extend the deadline. (Doc. 30, Hr'g Tr. 99:19-100:23; Hr'g Exh. 22.)4

On October 11, 2016, county recorder offices continued to receive voter registration applications. (Doc. 15-1 at 4-11, ¶ 17; Hr'g Exh. 25 ¶ 17; Hr'g Exh. 22.)5 Individuals went to the Committees' field offices seeking to register to vote for the upcoming election. (Doc. 5 at 4, ¶ 12.) While individuals were provided with applications to complete that would be delivered to the Maricopa County recorder, voters were informed that because the deadline to register fell on October 10, they were too late to be eligible to vote in the general election. (Doc. 5 at 4, ¶¶ 12-13.)

On October 19, 2016, nine days after the voter registration deadline had passed and one week into early voting, the Committees filed a complaint initiating the instant action. (Doc. 1.) In the complaint, they claim: that the October 10, 2016 deadline violated the National Voter Registration Act of 1993 ("NVRA") (Count I); that the Secretary's refusal to extend the voter registration deadline to October 11, 2016 unconstitutionally burdened individuals' fundamental right to vote in violation of the First and Fourteenth Amendments to the United States (Count II); and that the October 10, 2016 deadline violated established state law (Count III).

In the complaint, the Committees ask the Court to issue an order: (1) "[d]eclaring that all otherwise eligible Arizona voters who submitted a valid voter registration

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application, through any acceptable means, before midnight on October 11, 2016 are eligible to vote in the November 8 Election;" (2) [p]reliminarily and permanently enjoining [the Secretary] from disqualifying any Arizona voter from voting a regular ballot in the November 8 Election solely because he or she did not register by October 10, 2016, if he or she submitted a valid voter registration application before midnight on October 11, 2016 and is otherwise eligible to vote;" (3) "[r]equiring [the Secretary] to ensure that voter registration applications submitted before midnight on October 11, 2016 are processed in time for eligible voters...

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