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Brett W. Johnson (#021527)
Eric H. Spencer (#022707)
SNELL & WILMER L.L.P.
One Arizona Center
400 E. Van Buren St., Suite 1900
Phoenix, AZ 85004-2202
Telephone: 602.382.6000
Facsimile: 602.382.6070
E-Mail:
bwjohnson@swlaw.com
espencer@swlaw.com
Attorneys for Martha McSally and McSally for
Congress

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Snell & Wilmer

L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

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Ron Barber for Congress; Lea GoodwineCesarec; Laura Alessandra Breckenridge;
Josh Adam Cohen,

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Plaintiffs,
v.
Ken Bennett, in his official capacity as
Secretary of State of the State of Arizona;
Pima County Board of Supervisors, a body
politic; Ally Miller, in her official capacity
as a member of the Pima County Board of
Supervisors; Ramón Valadez, in his official
capacity as a member of the Pima County
Board of Supervisors; Sharon Bronson, in
her official capacity as a member of the
Pima County Board of Supervisors; Ray
Carroll, in his official capacity as a member
of the Pima County Board of Supervisors;
Richard Elías, in his official capacity as a
member of the Pima County Board of
Supervisors; the Cochise County Board of
Supervisors, a body politic; Patrick Call, in
his official capacity as a member of the
Cochise County Board of Supervisors; Ann
English, in her official capacity as a
member of the Cochise County Board of
Supervisors; Richard Searle, in his official
capacity as a member of the Cochise
County Board of Supervisors,
Defendants.

Case No. CV-14-2489-TUC-CKJ

INTERVENORS MARTHA MCSALLY
AND MCSALLY FOR CONGRESS’
REPLY IN SUPPORT OF MOTION
TO DISMISS VERIFIED COMPLAINT

Before the Honorable Cindy K. Jorgenson

(ORAL ARGUMENT REQUESTED)

(EXPEDITED RULING REQUESTED)

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Through the hyperbole of Plaintiffs’ Response to Intervenors Martha McSally and

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McSally for Congress’ Motion to Dismiss, the glaring holes in Plaintiffs’ case cannot be

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missed: (1) four Plaintiffs do not have standing to bring specific claims on behalf of more

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than 130 non-parties who chose not to bring suit in this matter, (2) Plaintiffs should have

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sought equitable relief before the county boards of supervisors acted to ensure any

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“missing votes” were counted, (3) the alleged specific unintentional isolated technical

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errors were in no way pervasive to now justify selectively counting ballots, and (4) the

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state processes are underway. Plaintiffs have failed to show why the Court should not

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allow the state system to address Plaintiffs’ concerns. Instead, Plaintiffs request that the

Snell & Wilmer

L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

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Court issue an injunction based on a number of votes that would still require a recount.

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Despite Plaintiffs’ sensational and speculative arguments, this Court lacks

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jurisdiction to hear Plaintiffs’ claims. Fed. R. Civ. P. 12(b)(1). And, even if jurisdiction

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had attached, Plaintiffs fail to state claims for which this Court can grant relief. Fed. R.

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Civ. P. 12(b)(6). Plaintiffs must show grounds for relief beyond the formulaic labels and

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conclusions they’ve put before the Court; their factual allegations must be enough for

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them to raise a right to relief above the speculative level. See Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007). This they do not do.

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Lacking jurisdictional basis and standing to bring their claims in this Court,

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Plaintiffs seek to delay the Secretary of State from certifying the canvass and, in this case,

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from referring the matter to the Maricopa County Superior Court to order a recount. The

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Secretary’s duties are non-discretionary. (Doc. 18, at 4.) It would be contrary to legislative

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intent and futile for this Court to attempt to intervene and insert its discretion in an arena

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where state law provides none, and Plaintiffs have not, and cannot, claim pervasive errors

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sufficient to give rise to a § 1983 claim.

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Glaringly missing from Plaintiffs’ Response (Doc. 21) is any standing argument

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allowing them to bring claims on behalf of the other 129 (or 130 or 156 as referenced in

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various iterations) alleged voters who allegedly did not have their vote counted. This is

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simple Black Letter law. See Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 39
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L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

Snell & Wilmer

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(1976) (applying standing analysis to test the allegations of each of the “individual

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respondents and the respondent organizations . . . for sufficiency”); Sprint Commc’ns Co.,

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L.P. v. APCC Servs., Inc., 554 U.S. 269, 273-74 (2008) (internal citations and some

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quotation marks omitted). Therefore, Plaintiffs do not dispute that they have no standing

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on behalf of the non-appearing declarants or that they lack allegations of pervasive errors

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sufficient for a candidate to object on behalf of an entire class of affected voters. Also

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missing is any showing that Ron Barber for Congress’ interests here are more than

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speculative. Speculative claims are insufficient to show redressability. See Sprint

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Commc’ns Co., 554 U.S. at 273-74.

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Although irrelevant due to the lack of jurisdictional basis and the lack of any

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allegation of pervasive violations, Plaintiffs’ continual references to 133 alleged votes that

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were allegedly not counted gloss over a missing essential element: Plaintiffs’ Complaint

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does not show any poll worker conduct was “intended” to deprive Plaintiffs (or the

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missing 130 other non-parties) of Constitutional rights. See Vallejo v. City of Tucson, No.

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CV 08-500 TUC DCB, 2009 WL 1835115, *2-3 (D. Ariz. June 26, 2009). Isolated

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technical issues on the part of election workers processing more than 200,000 voters do

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not justify halting the electoral process. See id.

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Certainly, the votes of qualified voters are constitutionally protected. Plaintiffs,

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however, do not proffer validly cast, qualified votes for rehabilitation. Instead, they

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request inclusion of votes in violation of state election law, merely because the voters “are

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eligible to vote in the general election for the second district.” (Doc. 22, at 3.) In

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construing these ballots as “constitutionally protected” (Doc. 22, at 2, 7), Plaintiffs ignore

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multiple provisions of Arizona election law, as well as extensive federal case law in

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support of the application of those laws. See, e.g., Krieger v. City of Peoria, 2014 WL

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4187500 at *3 (D. Ariz., Aug. 22, 2014) (noting the existence of state law remedies for

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claims like those Plaintiffs bring); Bennett v. Yoshina, 140 F.3d 1218 (9th Cir. 1998).

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Further, contrary to Plaintiffs’ protestations, abstention is warranted. The automatic

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recount provided for under state law is a core process bearing on the State’s interest in
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L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

Snell & Wilmer

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enforcing the orders and judgments of its courts. See ReadyLink Healthcare, Inc. v. State

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Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014); see also Ariz. Libertarian Party v.

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Bennett, CV-11-856-TUC-CKJ, 2013 WL 1149808, at *8 (D. Ariz. March 19, 2013)

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(describing State’s interest in enacting reasonable election regulations). Plaintiffs—

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without providing any reasonable criteria for this Court’s use in evaluating non-appearing

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voters’ individual claims—advocate for throwing the state process away and for “counting

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every vote,” regardless of the standards provided by state law. (Doc. 21, at 8-10.)

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The Court should abstain from replacing the trained judgment of election officials

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with its own. See Vallejo, 2009 WL 1835115, *3-4. Similarly, it should abstain from

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intervening where Plaintiffs have not allowed the states processes to exhaust. See Soules

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v. Kauaians for Nukolii Campaign Committee, 849 F.2d 1176, 1182 (9th Cir. 1988).

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Arizona has an orderly process, which should be allowed to run its course, especially

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because Plaintiffs have failed to show any pervasive violations of Constitutional rights. “If

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every state election irregularity were considered a federal constitutional deprivation,

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federal courts would adjudicate every state election dispute, and the elaborate state

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election contest procedures” would be rendered superfluous. Soules, 849 F.2d at 1183.

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The U.S. Supreme Court noted in Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam)

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that federal courts should abstain from interfering with state processes in the run-up to

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elections. This should apply a fortiori to emergency injunctive relief sought in the midst

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of post-election certification and counting processes. Especially where so many of

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Plaintiffs’ complaints (e.g., those regarding the process for signature matching, statutory

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bar to counting wrong-precinct votes) could have been brought well prior to now.

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Plaintiffs spend a great deal of time chastising alleged actions of the poll workers

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and election department.1 Their claims regarding this conduct fail to recognize that it is

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In proceedings earlier this month before the Pima County Superior Court, Plaintiffs’
counsel Mr. Barr argued that all the parties had to do was “rely upon what elections
officials have said here,” about processes used to determine whether votes were valid.
(Exhibit A, pertinent portions of transcript of proceedings in Rawson v. Nelson, No. C20145865, dated November 10, 2014, at 94:20–95:9.) Yet now Plaintiffs claim that
elections officials’ sensible determinations that certain votes are invalid should not be
countenanced.
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L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

Snell & Wilmer

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“the right to vote as the legislature has prescribed [that] is fundamental.” See Bush v.

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Gore, 531 U.S. 98, 104 (2000). It is necessary for the Legislature to establish voting

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standards to protect the State’s indisputably “compelling interest in preserving the

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integrity of its election process.” Eu v. San Francisco Cnty. Democratic Cent. Comm., 489

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U.S. 214, 231 (1989). Ballots that violate the Legislature’s reasonable prescriptions

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should not be counted, regardless of the arbitrary case-by-case standards that Plaintiffs

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want to apply after the fact. In any event, this Court is not the forum in which to claim that

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they should be.

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For example, Plaintiffs cite the “failure of poll workers to direct voters who moved

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to a different precinct.” (Doc. 21, at 12.) A.R.S. § 16-583(A) requires this of a poll

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worker only when someone appears who is on “the inactive voter list.” Id. Yet Plaintiffs

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bring no claims as to people who were actually on that list. The law imposes additional

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obligations with respect to those voters who the counties have put on the inactive voter

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list, to ensure that they have the opportunity to cast a ballot if that determination was in

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error. See A.R.S. § 16-583(A). The law does not impose this obligation with respect to all

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voters who have moved at any time.

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Plaintiffs’ attempts to contort Chavez v. Brewer, 222 Ariz. 309, 320, 214 P.3d 397,

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408 (App. 2009) to support their claims are similarly unavailing. No authority has

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interpreted Chavez to provide a private right of action after an election to enjoin

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certification of election results because the ballots were “not properly counted.” As with

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most of the cases cited by Plaintiffs, Chavez concerned a pre-election challenge to the use

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of non-HAVA compliant voting machines. See id. In Arizona, after an election, votes are

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presumed “properly counted” by state election officials, unless a contestant can show an

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“error” in vote tabulation that calls the entire outcome of the election into

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doubt. See A.R.S. 16-672(A)(5). Again, as in Chavez, a pervasive failure must exist,

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which it does not here. Simply, Plaintiffs’ own declarations reflect that votes were

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unlawfully cast, disqualified, and then not timely rehabilitated.

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L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

Snell & Wilmer

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This Court may not rehabilitate a narrow selection of individual votes within

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several different categories now, absent a greater showing of pervasive and intentional

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misconduct on the part of election officials as to each of those categories, which showing

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simply does not exist here. As the Secretary of State points out in his joinder, these voters

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had remedies in different places and at different times. (Doc. 19, at 2.) Just because

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Plaintiffs are without recourse at this point in this Court does not mean they were without

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recourse at all. For example, voters can report knowing misapplications of Arizona law or

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knowing failures to comply with Arizona law by election officials to the county attorney

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for criminal investigation and possible criminal prosecution. See A.R.S. §§ 16-1009

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(public officer who knowingly fails or refuses to perform duty prescribed by election law

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guilty of class 3 misdemeanor); 16-1010 (any person charged with duty under election law

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who knowingly refuses to perform it, and knowingly acts in violation of election law,

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guilty of class 6 felony).

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Plaintiffs discount the sensible and time-tested edict that violations of Arizona state

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election law affecting the outcome of an election should be resolved in an election

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contest. (Doc. 21, at 15.) If Plaintiffs’ claims were of pervasive error, which they are not,

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such serious errors and omissions in ballot tabulation could be challenged under A.R.S.

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16-672(A)(4) and (5) and, thus meet the high standard required by the legal authorities

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cited by Plaintiffs. Instead, Plaintiffs appear to understand their claims are futile, but hope

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that this Court will vindicate them in contradiction of Arizona law.

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Three electors’ and one candidate’s effort to perform an end-run around Arizona

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law should be rejected. If Plaintiffs did not like the orderly process upon which this

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election was administered, their time to object was prior to the election. Kerby v. Griffin,

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48 Ariz. 434, 444, 62 P.2d 1131, 1135 (1936); Tilson v. Mofford, 153 Ariz. 468, 470-71

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(1987).

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For the foregoing reasons, Intervenors Martha McSally and McSally for Congress
respectfully request that this action be dismissed.

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DATED this 26th day of November, 2014.

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SNELL & WILMER L.L.P.

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By:

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Snell & Wilmer

L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

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s/ Brett W. Johnson
Brett W. Johnson
Eric H. Spencer
One Arizona Center
400 E. Van Buren Street, Suite 1900
Phoenix, AZ 85004-2202
Attorneys for Martha McSally and
McSally for Congress

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CERTIFICATE OF SERVICE

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I hereby certify that on the 26th day of November, 2014, I electronically

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transmitted the attached document to the Clerk’s Office using the CM/ECF system for

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filing and transmittal of a Notice of Electronic Filing to the following CM/ECF

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registrants:

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Daniel Clayton Barr
Perkins Coie LLP
P.O. Box 400
Phoenix, AZ 85001-0400
Attorney for Plaintiffs

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Snell & Wilmer

L.L.P.
LAW OFFICES
One Arizona Center, 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602.382.6000

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s/ Tracy Hobbs
20530599

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