Bowyer v. Ducey

• Decision Date: 09 December 2020
• Docket Number: No. CV-20-02321-PHX-DJH,CV-20-02321-PHX-DJH
• Citation: 506 F.Supp.3d 699
• Parties: Tyler BOWYER, et al., Plaintiffs, v. Doug DUCEY, et al., Defendants.
• Court: U.S. District Court — District of Arizona

506 F.Supp.3d 699

Tyler BOWYER, et al., Plaintiffs,

v.Doug DUCEY, et al., Defendants.

No. CV-20-02321-PHX-DJH

United States District Court, D. Arizona.

Signed December 9, 2020

Alexander Michael Kolodin, Christopher Alfredo Viskovic, Kolodin Law Group PLLC, Phoenix, AZ, Brandon Johnson, Emily P. Newman, Sidney Katherine Powell, Pro Hac Vice, Sidney Powell PC, Dallas, TX, Howard Kleinhendler, Pro Hac Vice, New York, NY, Julia Zuszua Haller, Defending the Republic, Washington, DC, L. Lin Wood, Wood Hernacki & Evans LLC, Atlanta, GA, for Plaintiffs.

Anni Lori Foster, Office of the Governor, Brett William Johnson, Colin Patrick Ahler, Derek Conor Flint, Ian R. Joyce, Snell & Wilmer LLP, Phoenix, AZ, for Defendant Doug Ducey.

David Andrew Gaona, Kristen Michelle Yost, Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix, AZ, Davida Brook, Pro Hac Vice, Susman Godfrey LLP, Los Angeles, CA, Elizabeth B. Hadaway, Pro Hac Vice, Justin A. Nelson, Pro Hac Vice, Susman Godfrey LLP, Houston, TX, Stephen Edward Morrissey, Pro Hac Vice, Susman Godfrey LLP, Seattle, WA, Stephen Lee Shackelford, Jr., Pro Hac Vice, Susman Godfrey LLP, New York, NY, for Defendant Katie Hobbs.

ORDER

Diane J. Humetewa, United States District Judge Plaintiffs bring their Complaint seeking injunctive relief from this Court, specifically, to "set aside the results of the 2020 General Election," because they claim the election process and results were "so riddled with fraud, illegality and statistical impossibility ... that Arizona voters, courts and legislators cannot rely on or certify" its results. (Doc. 1 at 2). By any measure, the relief Plaintiffs seek is extraordinary. If granted, millions of Arizonans who exercised their individual right to vote in the 2020 General Election would be utterly disenfranchised. Such a request should then be accompanied by clear and conclusive facts to support the alleged "egregious range of conduct in Maricopa County and other Arizona counties ... at the direction of Arizona state election officials." (Id. ) Yet the Complaint's allegations are sorely wanting of relevant or reliable evidence, and Plaintiffs’ invocation of this Court's limited jurisdiction is severely strained. Therefore, for the reasons stated herein, the Complaint shall be dismissed.

I. Background

In Arizona, more than 3.4 million voters participated in the November 3, 2020, General Election. Thereafter, pursuant to A.R.S. § 16-602, several counties performed a hand count of sample ballots to test the tabulation equipment, and either no discrepancies were found or, if there were, they were "within the acceptable margin."¹ Arizona law also requires the secretary of state, in the governor's presence, to certify the statewide canvas on the fourth Monday after a general election. A.R.S. § 16-648. On November 30, 2020, Secretary of State Katie Hobbs, in the presence of Governor Doug Ducey, certified the statewide canvas. (Doc. 40 at 4). The Canvas shows that former Vice President Joseph Biden prevailed over President Donald Trump by more than ten thousand votes.² On that same day, Governor Ducey signed the Certificate of Ascertainment for Vice President Biden's presidential electors. (Doc. 40 at 4). The Certificate was then transmitted to the United States Archivist pursuant to the Electoral Count Act. (Id. ); see also 3 U.S.C. § 6.

In their Complaint and the accompanying Motion for Temporary Restraining Order ("TRO") filed on December 2, Plaintiffs "contest" the election and ask this Court to compel the Governor to "de-certify" these results. (Docs. 1 ¶ 145; 2 at 10). The Complaint also requests that this Court grant a permanent injunction "enjoining Secretary Hobbs and Governor Ducey from transmitting the currently certified election results to the Electoral College," declare the election results unconstitutional, and seize all voting machines, equipment, software, and other election-related records and materials, including all ballots cast.³ (Doc. 1 at 51–52). The Complaint claims to show "multifaceted schemes and artifices implemented by Defendants and their collaborators" to defraud the election. (Id. at ¶ 3). And these schemes allegedly resulted in "the unlawful counting, or fabrication, of hundreds of thousands of illegal, ineligible, duplicate or purely fictitious ballots." (Id. )

Of the fourteen named Plaintiffs, three are registered voters and GOP Chairs for various Arizona counties. (Id. at ¶¶ 29–31). The remaining eleven are Republican nominees for Arizona's presidential electors. (Id. at ¶ 28). One of the eleven, Dr. Kelli Ward, filed suit in state-court over allegations of fraud in this election. See Ward v. Jackson , Case No. CV2020-015285, slip. op. (Ariz. Super. Ct. Dec. 4, 2020) (finding no evidence of alleged fraud and dismissing claims of election misconduct); (Doc. 55-1). In that case, on December 8, 2020, the Arizona Supreme Court affirmed the Maricopa County Superior Court's findings that there was no evidence of fraud or misconduct in Arizona's election. (Ward v. Jackson , CV2020-015285 (Ariz. 2020); (Doc. 81-1).

Plaintiffs’ Complaint contains four counts, three of which assert 42 U.S.C. § 1983 claims for violations of the Constitution's Elections and Electors Clauses, as well as the Fourteenth Amendment's Due Process and Equal Protection guarantees. (Doc. 1 ¶¶ 103–34). The final count, which does not specify a cause of action, is for "Wide-Spread Ballot Fraud." (Id. at ¶¶ 135–41).

On December 3, the day after Plaintiffs filed their Complaint, the Court received a Motion to Intervene from the Arizona Democratic Party, which was subsequently denied.⁴ (Docs. 26 and 69). The Court also received a Motion to Intervene from the Maricopa County Board of Supervisors and Maricopa County Recorder Adrian Fontes, which was granted. (Docs. 27 and 32). The Court held a status conference on the same day, in which it scheduled a December 8 hearing on the TRO. (Doc. 28). By subsequent Order (Doc. 43), the Court converted that hearing to oral argument on the Motions to Dismiss filed on December 4. (Docs. 36, 38, and 40). Plaintiffs have filed their Response to the Motions (Doc. 44), and Defendants have filed their Replies. (Docs. 53, 54, and 55). On December 8, 2020, the Court held oral argument on the Motions to Dismiss and took this matter under advisement. Being fully briefed on the matter, the Court now issues its ruling.

II. Analysis

Given the import of the overarching subject—a United States Presidential Election—to the citizens of Arizona, and to the named Plaintiffs, the Court is compelled to make clear why it finds it inappropriate to reach the merits of Plaintiffs’ Complaint and why it must grant the Motions to Dismiss this matter in its entirety. The Court will endeavor to lay bare the independent reasons for its conclusions, including those related to Article III standing, abstention, laches, mootness, and the federal pleading standards, which govern its review.

A. Article III Standing

"To ensure that the Federal Judiciary respects the proper—and properly limited—role of the courts in a democratic society, a plaintiff may not invoke federal-court jurisdiction unless he can show a personal stake in the outcome of the controversy." Gill v. Whitford , ––– U.S. ––––, 138 S. Ct. 1916, 1929, 201 L.Ed.2d 313 (2018) (internal citations omitted). Article III provides that federal courts may only exercise judicial power in the context of "cases" and "controversies." U.S. Const. Art. III, § 2, cl. 1 ; Lujan v. Defs. of Wildlife , 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). For there to be a case or controversy, the plaintiff must have standing to sue. Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (" Spokeo II "). Whether a plaintiff has standing presents a "threshold question in every federal case [because it determines] the power of the court to entertain the suit." Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). "No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). A suit brought by a plaintiff without Article III standing is not a "case or controversy," and an Article III federal court therefore lacks subject matter jurisdiction. Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

"[A] plaintiff seeking relief in federal court must first demonstrate ... a personal stake in the outcome," Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), distinct from a "generally available grievance about government," Lance v. Coffman , 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007) (per curiam). "That threshold requirement ensures that we act as judges, and do not engage in policymaking properly left to elected representatives." Gill , 138 S. Ct. at 1923. To establish standing, a plaintiff has the burden of clearly demonstrating that she has: "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo II , 136 S. Ct. at 1547 (quoting Warth , 422 U.S. at 518, 95 S.Ct. 2197 ); accord Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (noting the party asserting jurisdiction bears the burden of establishing subject matter jurisdiction on a Rule 12(b)(1) motion to dismiss).

To establish an injury in fact, "a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Spokeo II, 136 S. Ct. at 1548 (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). "When we have used the adjective ‘c...