Chavez v. Brewer

Decision Date21 July 2009
Docket NumberNo. 1 CA-CV 06-0575.,1 CA-CV 06-0575.
Citation214 P.3d 397,222 Ariz. 309
PartiesAlejandro CHAVEZ; Sonja Elison; Judy Leiken; Thomas W. Ryan, Plaintiffs/Appellants, v. Janice K. BREWER, in her official capacity as Secretary of State for the State of Arizona; Lenora Johnson, in her official capacity as Recorder for Apache County; Apache County; Candace D. Owens, in her official capacity as Recorder for Coconino County; Coconino County; Linda Haught Ortega, in her official capacity as Recorder for Gila County; Gila County; Berta Manuz, in her official capacity as Recorder for Greenlee County; Greenlee County; Shelly Baker, in her official capacity as Recorder for La Paz County; La Paz County; Helen Purcell, in her official capacity as Recorder for Maricopa County; Maricopa County; Joan McCall, in her official capacity as Recorder for Mohave County; Mohave County; Laurette Justman, in her official capacity as Recorder for Navajo County; Navajo County; F. Ann Rodriguez, in her official capacity as Recorder for Pima County; Pima County; Laura Dean-Lytle, in her official capacity as Recorder for Pinal County; Pinal County; Suzanne Sainz, in her official capacity as Recorder for Santa Cruz County; Santa Cruz County; Ana Wayman-Trujillo, in her official capacity as Recorder for Yavapai County; Yavapai County; Susan Hightower Marler, in her official capacity as recorder for Yuma County; Yuma County, Defendants/Appellees.
CourtArizona Court of Appeals

Perkins Coie Brown & Bain, P.A. By Paul F. Eckstein, Charles A. Blanchard, Michael T. Liburdi, Rhonda L. Barnes, Lauren J. Lowe, Phoenix, Lowell Finley, Berkeley. Attorneys for Plaintiffs/Appellants.

Terry Goddard, Attorney General By Carrie J. Brennan, Assistant Attorney General, Wilenchik and Bartness, P.C., Phoenix By Dennis I. Wilenchik and Kathleen E. Rapp, Andrew P. Thomas, Maricopa County Attorney, By Colleen Connor, Deputy County Attorney, Phoenix, Attorney for Defendants/Appellees.

OPINION

HALL, Judge.

¶ 1 Alejandro Chavez, Sonja Elison, Judy Leiken, and Thomas W. Ryan (collectively, appellants) appeal from the trial court's order dismissing their complaint against Janice K. Brewer, in her official capacity as Secretary of State, Apache County, Coconino County, Gila County, Greenlee County, La Paz County, Maricopa County, Mohave County, Navajo County, Pima County, Pinal County, Santa Cruz County, Yavapai County, and Yuma County, and each of the official Recorders for the named counties (collectively, appellees). Contrary to the determination by the trial court, we conclude that the political question component of the separation of powers doctrine does not preclude judicial review of appellants' claim that Secretary Brewer abused her authority in certifying for use two voting machines that appellants assert do not comply with Arizona statutes. We further hold that appellants have an implied private right of action to claim that the voting machines do not comply with applicable statutory requirements. Finally, we conclude that appellants have stated viable claims under Article 2, Section 21 (Free and Equal Elections), and Article 2, Section 13 (Privileges or Immunities) of the Arizona Constitution, but have not stated a cognizable claim under Article 7, Section 12 (Purity of Elections). Therefore, we vacate the trial court's order in part, affirm it in part, and remand the case for further proceedings on the remaining claims in the complaint.

FACTS AND PROCEDURAL HISTORY

¶ 2 Following the constitutional crisis triggered by Florida's use of outdated punch card technology in the 2000 presidential election, the United States Congress enacted the Help America Vote Act of 2002 (HAVA) to improve the administration of elections. 42 U.S.C. §§ 15301 to 15545 (2002). Pursuant to HAVA, the federal government appropriated funding to enable each state to replace punch card or lever voting machines. 42 U.S.C. §§ 15301(b)(1)(F), 15302(b)(1)(A). In addition, HAVA established minimum election administration standards for state and local governments, including requirements that each polling place provide "at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities" and that the voting system "provide alternative language accessibility." 42 U.S.C. § 15481(a)(3)(B), (a)(4). States were required to comply with HAVA no later than January 1, 2006. 42 U.S.C. § 15481(d).

¶ 3 During the subsequent four years, the Arizona Legislature amended and enacted several statutes to effectuate HAVA. Among these changes, the legislature amended Arizona Revised Statutes (A.R.S.) section 16-442(A) to require that the secretary of state determine the voting machines that are "certified for use" in elections.1 2003 Ariz. Sess. Laws, ch. 260, § 9 (1st Reg.Sess.). The legislature also amended the process for selecting electronic voting machines by requiring that the secretary of state certify only voting machines that "comply with [HAVA]" and requiring that all election machines or devices be "tested and approved by a laboratory that is accredited pursuant to [HAVA]." Id.; A.R.S. § 16-442(B) (2006). The legislature also authorized the secretary of state to revoke the certification of any voting system that fails to meet the new standards. 2003 Ariz. Sess. Laws, ch. 260, § 9; 2005 Ariz. Sess. Laws, Ch. 144, § 2; A.R.S. § 16-442(C), (D).

¶ 4 In addition, the legislature enacted A.R.S. § 16-442.01 (2006), 2004 Ariz. Sess. Laws, ch. 290, § 1 (effective January 1, 2006), which requires in subsection A that voting systems used in the state (with certain exceptions, including cities and towns of less than twenty thousand people) must provide persons who are blind or visually impaired with "access to voting that is equivalent to that provided to persons who are not blind or visually impaired." To implement this requirement, subsection C requires the secretary of state to consult with and obtain recommendations for voting equipment from nonprofit organizations representing the blind and visually impaired and other persons with expertise in accessible software, hardware, and other technology. After receiving these recommendations, the secretary of state must submit to the committee appointed pursuant to § 16-442(A) one or more voting systems that provide "equivalent access" for its review and recommendation to the secretary for possible certification. A.R.S. § 16-442.01(C). As further explained in § 16-442.01(B)(1), a voting system provides equivalent access when it allows the voter "to cast and verify by both visual and nonvisual methods all of the selections that were made." Nonvisual methods for casting and verifying selections made on a voting system include "the use of synthesized speech, braille and other output methods that do not require sight." A.R.S. § 16-442.01(B)(2).

¶ 5 Pursuant to this statutory scheme, Secretary Brewer engaged in the following voting equipment selection process. She commissioned a study in 2004 of the available direct recording electronic (DRE) voting systems. The result of the study, the Voting Action Plan report, was posted on the Secretary's website and published in March 2005. As required by § 16-442(A), the Secretary also appointed a bipartisan three-member committee to investigate and test recording and tabulation devices and make recommendations on certification for the Secretary's consideration. Before making its certification recommendations, the committee solicited input from disability advocacy groups2 and technology experts. See A.R.S. § 16-442.01(C).

¶ 6 After consulting with the election committee, the machines selected by the Secretary were submitted to HAVA-approved "independent testing authorities" for testing and approval. Based on the committee's recommendations, the Secretary also adopted a decertification procedure, which she then submitted to the Department of Justice for preclearance. The Department of Justice approved the Secretary's decertification, certification, and conditional certification procedures.

¶ 7 In March 2005, the Secretary began drafting a Request for Proposal (RFP) to solicit bids for HAVA-compliant voting machines. After submitting two preliminary drafts of the RFP to county election directors for their review and comment, the Secretary issued the final RFP on September 20, 2005. In September 2005, the Secretary appointed an evaluation committee, comprised of four members of the Secretary's staff and three county members, to review the bids and select a vendor or vendors to supply the counties with accessible voting equipment. One of the key considerations in selecting accessible voting equipment for each county was its compatibility with the optical scan voting systems already in place.3 On December 30, 2005, contracts to supply accessible voting equipment were awarded to Sequoia for Maricopa County, ES & S Auto-MARK for Cochise and Graham Counties, and Diebold for all other Arizona counties.

¶ 8 On May 10, 2006, appellants filed a verified complaint for declaratory, injunctive, and mandamus relief against appellees. Appellant Alejandro Chavez is a naturalized United States citizen who primarily speaks Spanish; appellant Sonja Elison has low vision; appellant Judy Leiken has multiple sclerosis; and appellant Thomas W. Ryan has a Ph.D. in electrical engineering. All are qualified electors in either Pima or Maricopa County. In their complaint, appellants assert that two of the DRE voting machines selected by the Secretary of State, the Diebold AccuVote TSx and the Sequoia Edge II Plus, do not satisfy Arizona's statutory "requirements for accuracy and disability access and [] present unacceptable risks of inaccuracy, vote manipulation, and malfunction." The complaint is based on numerous factual allegations regarding supposed deficiencies in the Diebold and Sequoia DRE machines, including: 1) the failure of both machines to include technology permitting people...

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1 books & journal articles
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