Ariz. Democratic Party v. Hobbs

• Decision Date: 10 September 2020
• Docket Number: No. CV-20-01143-PHX-DLR,CV-20-01143-PHX-DLR
• Parties: ARIZONA DEMOCRATIC PARTY, et al., Plaintiffs, v. Katie HOBBS, et al., Defendants.
• Court: U.S. District Court — District of Arizona

485 F.Supp.3d 1073

ARIZONA DEMOCRATIC PARTY, et al., Plaintiffs,

v.Katie HOBBS, et al., Defendants.

No. CV-20-01143-PHX-DLR

United States District Court, D. Arizona.

Signed September 10, 2020

Alexis Elizabeth Danneman, Joshua Lee Boehm, Perkins Coie LLP, Phoenix, AZ, Ariel Brynne Glickman, Pro Hac Vice, Marc E. Elias, Pro Hac Vice, Perkins Coie LLP, Washington, DC, Kevin J. Hamilton, Pro Hac Vice, William B. Stafford, Pro Hac Vice, Perkins Coie LLP, Seattle, WA, Sarah Langberg Schirack, Pro Hac Vice, Perkins Coie LLP, Anchorage, AK, for Plaintiffs.

David Andrew Gaona, Kristen Michelle Yost, Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix, AZ, for Defendant Katie Hobbs.

Joseph D. Young, Apache County Attorneys Office, Saint Johns, AZ, for Defendant Edison Wauneka.

Britt Wesley Hanson, Christine Joyce Roberts, Cochise County Attorney, Bisbee, AZ, for Defendant David Stevens.

Rose Marie Winkeler, Coconino County Attorneys Office, Flagstaff, AZ, for Defendant Patty Hansen.

Jefferson R. Dalton, Gila County Attorney's Office, Globe, AZ, for Defendant Sadie Jo Bingham.

Kenneth Andrew Angle, Graham County Attorneys Office, Safford, AZ, for Defendant Wendy John.

Jason Stanley Moore, Navajo County Attorneys Office, Holbrook, AZ, for Defendants Sharie Milheiro, Michael Sample.

Ryan Norton Dooley, La Paz County Attorneys Office, Parker, AZ, for Defendant Richard Garcia.

Joseph James Branco, Joseph Eugene LaRue, Maricopa County Attorneys Office, Phoenix, AZ, for Defendant Adrian Fontes.

Jeffrey Blane Haws, Mohave County Attorneys Office, Kingman, AZ, for Defendant Kristi Blair.

Daniel S. Jurkowitz, Pima County Attorneys Office, Tucson, AZ, for Defendant F. Ann Rodriguez.

Craig Charles Cameron, Pinal County Attorneys Office, Florence, AZ, for Defendant Virginia Ross.

Kimberly Janiece Hunley, Santa Cruz County Attorney, Nogales, AZ, for Defendant Suzanne Sainz.

Thomas M. Stoxen, Yavapai County Attorneys Office, Prescott, AZ, for Defendant Leslie Hoffman.

William J. Kerekes, Yuma County Attorneys Office, Yuma, AZ, for Defendant Robyn Stallworth Pouquette.

ORDER

Douglas L. Rayes, United States District Judge

Plaintiffs the Arizona Democratic Party ("ADP"), the Democratic National Committee ("DNC"), and the Democratic Senatorial Campaign Committee ("DSCC") seek to enjoin Arizona's election officials from rejecting vote-by-mail ("VBM") ballots¹ in unsigned envelopes without allowing non-signing voters the same five days after Election Day to correct their omissions as allowed to voters whose envelopes contain perceived mismatched signatures and in-person voters without proper identification. At issue are Plaintiffs’ motions for a preliminary and permanent injunction (Doc. 2) and to preclude certain opinions offered by Professor Lonna Atkeson, an expert retained by Intervenor-Defendant the State of Arizona ("State") (Doc. 101). The Court consolidated the preliminary injunction hearing with the final bench trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). Having considered the parties’ briefs (Docs. 2, 85, 86, 91, 96, 97, 101, 105), their evidence,² and their presentations at the consolidated hearing, the Court partially grants Plaintiffs’ motion to preclude and grants Plaintiffs’ motion for a permanent injunction.³

I. Background

Arizona allows no-excuse VBM during the twenty-seven days before an election. A.R.S. §§ 16-541, -542(C). Most voters choose this option. (Pl. Exh. 6.) VBM voters must return their completed ballots in specially provided, postage-paid envelopes and sign an affidavit printed on those envelopes. A.R.S. §§ 16-547, -548. Election officials compare these signatures with signatures on record to verify that the ballot returned was, in fact, cast by the voter to whom that ballot belongs. A.R.S. § 16-550. A ballot that cannot be verified will not be counted. A.R.S. § 16-552(B).

Every election, officials receive some ballots in unsigned envelopes and some in envelopes bearing signatures that appear not to match the signatures on those voters’ registration records. Until recently, Arizona law was silent on what election officials should do with such ballots, leading each county to institute its own policies. (St. Exh. 101 ¶ 25.) Some counties allowed voters to cure perceived mismatched signatures after Election Day, others did not. (Id. ) Some counties allowed voters to cure missing signatures by Election Day, but no county—except Santa Cruz—allowed voters to do so after Election Day. (Id. ; Pl. Exh. 7 at 3.)

This patchwork approach changed on August 27, 2019, when the Arizona legislature amended the election code to provide a uniform cure period for ballot envelopes with perceived mismatched signatures. Arizona law now allows voters to cure perceived mismatched signatures up to five business days after an election.⁴

A.R.S. § 16-550(A). This amendment mirrors Arizona's treatment of ballots cast in person by voters who arrive at the polls without proper identification. Such voters are permitted to cast conditional provisional ballots, A.R.S. § 16-579(A), which will be counted if the voter presents an acceptable form of identification to the appropriate county recorder up to five business days after the election. (Pl. Exh. 3 at 196.) However, Arizona's election code does not expressly address whether ballot envelopes with missing signatures may be cured.

Defendant Arizona Secretary of State Katie Hobbs ("Secretary") sought to fill this gap. The Secretary is Arizona's chief election officer and required by law to prescribe in the Election Procedures Manual ("EPM") "rules to achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency on the procedures for early voting and voting, and of producing, distributing, collecting, counting, tabulating and storing ballots." A.R.S. §§ 41-121, 16-452(A). To that end, the Secretary's October 2019 draft EPM instructed election officials to permit voters to cure a missing signature within the same post-election time frame applicable to perceived mismatched signatures. (Pl. Exh. 2 at 77.)

To become effective, the EPM must be approved by the Attorney General and Governor. A.R.S. § 16-452(B). The Attorney General objected to the Secretary's draft because, in his view, Arizona law implicitly prohibits a post-election cure period for missing signatures. (Pl. Exhs. 24 (attached Excel spreadsheet), 26 at 11-13; St. Exh. 113.) Although the Secretary disagreed with the Attorney General's interpretation of Arizona law,⁵ she acquiesced to removing the language in the interest of timely issuing an updated version of the EPM. (Pl. Exh. 26 at 11-13.) The finalized EPM provides:

If the early ballot affidavit is not signed, the County Recorder shall not count the ballot. The County Recorder shall then make a reasonable and meaningful attempt to contact the voter via mail, phone, text message, and/or email, to notify the voter the affidavit was not signed and explain to the voter how they may cure the missing signature or cast a replacement ballot before 7:00pm 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 7:00pm on Election day.

(Pl. Exh. 3 at 82-83.)

On June 10, 2020, Plaintiffs filed a two-count complaint against the Secretary and the recorders for each of Arizona's fifteen counties pursuant to 42 U.S.C. § 1983.⁶ (Doc. 1.) Both counts allege that the Election-Day cure deadline for unsigned ballot envelopes violates the Fourteenth Amendment to the United States Constitution—in Count I, by unjustifiably burdening the right to vote; in Count II, by denying procedural due process. ⁷

(Id. ¶¶ 59-63.) Plaintiffs concurrently filed a motion for a preliminary and permanent injunction requiring Defendants to allow voters to cure missing signatures in the same post-election period applicable to perceived mismatched signatures. (Doc. 2.)

The Court granted motions to intervene filed by the State (Docs. 16, 28) and the Republican National Committee, the Arizona Republican Party, and Donald J. Trump for President, Inc. (Docs. 35, 60). At a June 23, 2020 scheduling conference, the Court granted, without objection, Plaintiffs’ request to consolidate the hearing on their preliminary injunction motion with the final bench trial on the merits. (Docs. 38, 39.) On August 18, 2020, the Court held the consolidated hearing. After the admission of evidence and oral argument, the matter was taken under advisement.

II. Motion to Preclude

Federal Rule of Evidence 702, which governs the admissibility of expert opinion testimony, provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

The State retained Professor Atkeson to opine as an expert on matters related to election administration and voter behavior. Professor Atkeson's report was stipulated into evidence, except paragraphs 55-62, 72-76, and 94, which Plaintiffs challenged as unreliable. (Doc. 101.)

A. The First Challenged Opinion

Professor Atkeson opined in paragraphs 55-62 and 94 that post-election cure periods, especially generous ones, might result in lower cure rates. (St. Exh. 101.) Professor Atkeson reached this conclusion in two ways: empirically and theoretically.

For her empirical analysis, Professor Atkeson looked to the total number of VBM ballots rejected for a missing or mismatched signature in 2016 and 2...