EXHIBIT 1

1 Roopali H. Desai (024295)

D. Andrew Gaona (028414)
2 Kristen Yost (034052)
COPPERSMITH BROCKELMAN PLC
3 2800 North Central Avenue, Suite 1900
Phoenix, Arizona 85004
4 T: (602) 381-5478
5 rdesai@cblawyers.com
agaona@cblawyers.com
6 kyost@cblawyers.com
Attorneys for Proposed Intervenor
7 Arizona Secretary of State Katie Hobbs
8
9 ARIZONA SUPERIOR COURT

10 MARICOPA COUNTY

11 KELLI WARD, ) No. CV2020-015285

)
12 Plaintiff, )
) ARIZONA SECRETARY OF STATE
13 v. ) KATIE HOBBS’ OPPOSITION TO
) PETITIONER’S RULE 27 PETITION
14 CONSTANCE JACKSON; FELICIA )
ROTELLINI; FRED YAMASHITA; JAMES )
15 MCLAUGHLIN; JONATHAN NEZ; LUIS ) (Assigned to The Hon. Randall Warner)
16 ALBERTO HEREDIA; NED NORRIS; )
REGINA ROMERO; SANDRA D. )
KENNEDY; STEPHEN ROE LEWIS; and (Hearing Set for Nov. 30, 2020 at 10:30 am)
17 )
STEVE GALLARDO, )
18 )
Defendants. )
19 )
)
20 KATIE HOBBS, in her official capacity as )
Arizona Secretary of State, )
21
)
Intervenor. )
22
)
23
24
25
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1 Proposed Intervenor Secretary of State Katie Hobbs opposes Petitioner Dr. Kelli Ward’s
2 Rule 27 Petition. The Court should deny the Petition, consolidate any subsequently filed contest
3 with this action, and consider any discovery requests Petitioner makes as part of the contest.
4 Introduction
5 “Free, fair elections are the lifeblood of our democracy. Charges of unfairness
are serious. But calling an election unfair does not make it so. Charges require
6 specific allegations and then proof. We have neither here.”1
7 These recent words from the United States Court of Appeals for the Third Circuit
8 summarize not only the Rule 27 petition before this Court (“Petition”), but similar litigation
9 brought throughout battleground states by the Trump Campaign and state-level political allies
10 like Petitioner Dr. Kelli Ward. In the absence of any evidence of fraud or irregularities, elected
11 officials and political leaders—including political party officials like Petitioner—should instill
12 confidence in our election systems, not undermine it. They should support our hard-working
13 election administrators of all parties and persuasions, not impugn them. And they should
14 understand that the natural consequence of an election is that there’s a winner and a loser; after
15 all, that is how democracy works.
16 The last few weeks highlight a fundamental misunderstanding of these simple principles.
17 In the end, “[v]oters, not lawyers, choose the President. Ballots, not briefs, decide elections.”2
18 And the people of Arizona have made their choice, electing a slate of presidential electors by a
19 margin of 10,457 votes (with Maricopa County voters choosing those same presidential electors
20 by a margin of 45,109 votes). Yet after this Court dismissed four other challenges to the conduct
21 of the 2020 General Election in Maricopa County brought by Petitioner’s allies, Petitioner seeks
22 discovery under Rule 27 to perform what can charitably be described as a fishing expedition
23 before filing a baseless election contest. The Petition should be denied.
24
25
1
Donald J. Trump for President, Inc. v. Sec’y Commonwealth of Penn., No. 20-3371 (3d.
Cir. Nov. 27, 2020), available at https://www2.ca3.uscourts.gov/opinarch/203371np.pdf
26 2
Id.
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1 First, the Petition will be moot thirty minutes after the November 30, 2020 hearing
2 begins. At that time, the Secretary of State (“Secretary”) will certify the statewide canvass as
3 required by A.R.S. § 16-650, Petitioner’s purported election contest claims will ripen, and her
4 request for discovery must be considered in the context of a live case, not abstractly.
5 Second, the Petition seeks discovery not permitted under Rule 27 or Arizona’s election
6 contest statutes. Petitioner’s attempt to use Rule 27 “to fish for some ground for bringing suit
7 [is] ‘an abuse of the rule.’” Gilford v. Bank of New York Mellon Corp. as Tr. for
8 Certificateholders of CWALT, Inc., 2012 WL 13130213, at *2 (N.D. Ga. June 18, 2012) (citation
9 omitted). Even more, Petitioner cannot use Rule 27 to side-step the limits on discovery in
10 election contests. Because election contests are “purely statutory,” the contours of such an action
11 “lies within the discretion of the legislature,” Barrera v. Superior Court, 117 Ariz. 528, 529
12 (App. 1977). Here, the Legislature authorized only a single “discovery” device it deemed
13 relevant to an election contest: the inspection of “ballots” with a court order after meeting certain
14 conditions. See A.R.S. § 16-677. Early ballot return envelopes and voter signatures are not
15 ballots, and thus are not the proper subject of a court order. See A.R.S. § 16-545(B)(2).
16 Third, Rule 27 requires that Petitioner have a “cognizable” claim, and Petitioner has no
17 such claim under A.R.S. § 16-672. Her claim about early ballot signature verification exemplifies
18 a claim barred by laches, as established by the proposed election contest petition’s allegations
19 themselves. Petitioner also declares a right to observe the processing where none exists, and
20 doesn’t have even a shred of proof that Maricopa County mistakenly accepted a single early
21 ballot, to say nothing of enough to warrant overturning the results of a statewide election and
22 nullifying the votes of over 3.42 million Arizonans. An election contest must rest on facts, not
23 conspiracy-theory-level speculation about widespread signature fraud, and that the observation
24 of signature verification did not go as Petitioner would have liked. This simply isn’t actionable
25 “misconduct.”
26
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1 As for Petitioner’s claim about alleged problems with “duplicate” ballots in
2 “Congressional District 5/Queen Creek,” it is equally frivolous. Petitioner infers systemic
3 misconduct from the fact that President Trump underperformed in that area; as she puts it, the
4 result was “strongly inconsistent with voter registration data (party affiliation) and with historical
5 voting data.” That, of course, is evidence of nothing other than a candidate not living up to
6 expectations. And it’s not a ground on which to contest and throw out the results of an election.
7 In any event, Petitioner’s failure to allege that there was an actual error with even a single
8 “duplicated” ballot dooms this claim. Indeed, at most 104 ballots were “duplicated” from that
9 geographic area. [See Exhibit A (Decl. of Scott Jarrett) at ¶ 9]. Thus, even if Petitioner’s
10 allegations gave rise to a cognizable claim (it does not), her claim is futile.
11 Difficult as it may be for Petitioner to accept, this election is over, and her preferred slate
12 of presidential electors received fewer votes than those of the winning challenger. The Secretary
13 respectfully requests that the Court deny the Petition and declare that Petitioner has no
14 “cognizable” election contest claim. Petitioner’s attempts to further delay and undermine the
15 outcome of the election must end now.
16 Relevant Facts
17 A. The 2020 General Election.
18 Arizona successfully administered a safe and secure 2020 General Election with record
19 turnout. Election officials worked hard to ensure that Arizonans could exercise their right to vote,
20 from early voting that began on October 7 through Election Day voting on November 3. Since
21 Election Day, county election officials have been working hard to tabulate, verify, and certify
22 the election results in their respective counties. On November 9, Maricopa County completed its
23 hand count audit with the participation of the Democratic, Republican, and Libertarian parties.3
24 The hand count audit included a one percent sampling of the over 1.9 million early ballots cast,
25
26
3
Ariz. Sec’y of State, Maricopa County 2020 General Election Hand Count Audit Report,
https://azsos.gov/sites/default/files/2020_General_Maricopa_Hand_Count.pdf.
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1 and a five percent sampling of all Election Day ballots. The hand count audit revealed no
2 discrepancies in the machine tabulation of votes. On November 23, Maricopa County completed
3 its canvass, certifying that the Biden Electors received 1,040,774 votes and the Trump Electors
4 received 995,665 votes in the presidential race (a difference of 45,109 votes).4 Petitioner does
5 not challenge results in any of the fourteen other counties.
6 B. The Rule 27 Petition.
7 Petitioner filed the Rule 27 Petition seeking discovery of (1) a “reasonable inspection
8 (sampling) of mail-in ballots” cast in Maricopa County, “specifically including their signed
9 envelopes” [¶ 13]; and (2) a “subpoena to compare ‘duplicate’ ballots to the original ballots from
10 which they were ‘duplicated,’ for Congressional District 5/Queen Creek in particular” [¶ 18].
11 Petitioner claims [¶ 4] that she needs this discovery for an election contest, which she
12 cannot yet file until the Secretary completes the statewide canvass on November 30. She attached
13 her proposed election contest as “Exhibit 1” to the Petition. The Court set a hearing for the next
14 judicial day, November 30, at 10:30 a.m.
15 C. The Proposed Election Contest.
16 Petitioner’s proposed election contest challenges the results of the presidential election
17 on these grounds: (1) election official “misconduct”; (2) “illegal votes”; and (3) because of an
18 “erroneous count of votes,” the Biden Electors “did not in fact receive the highest number of
19 votes.” [Ex. ¶¶ 30-31] Her claims stem from two issues.
20 First, she alleges that observers were not close enough to properly observe the signature
21 validation process for early ballots. [Ex. ¶¶ 11-23] This, according to Petitioner [¶ 38], warrants
22 throwing out the election results because some officials “potentially allow[ed] falsely or
23 insufficiently verified ballots to be counted.”
24
25
4
Ariz. Sec’y of State, Maricopa County 2020 General Election Canvass,
https://azsos.gov/sites/default/files/2020.11.23-Maricopa-
26 General_Election_Canvass_Summary.pdf
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1 Second, Petitioner alleges an attenuated chain of guesswork to conclude that Donald
2 Trump should have won a congressional district in Queen Creek. She claims that election
3 workers and observers had to “catch” errors in Maricopa County’s “highly inaccurate” ballot
4 duplication software, [¶ 27], that the county sent duplicated ballots to a third-party vendor for
5 printing, and observers were “unable to observe” whether the vendor “print[ed] the correct
6 ballots.” [¶ 26]. She also claims that there was a “high number of ‘duplicate’ ballots in
7 Congressional District 5,” [¶ 28], and that the results in that district “were strongly inconsistent
8 with voter registration data (party affiliation) and with historical voting data,” [id.].
9 Based on this, Petitioner asks the Court to invalidate the election of the Biden Electors
10 and, “if an inspection of the ballots should so prove,” declare the Trump Electors as the winner
11 instead. [Ex. 1, Prayer for Relief]
12 Argument
13 A Rule 27 Petition must, among other things: (1) “show that the petitioner expects to be
14 a party to an action cognizable in any court within the United States but cannot presently bring
15 it or cause it to be brought”; and (2) “show the facts that the petitioner desires to establish by the
16 proposed discovery and the reasons for perpetuating it in advance of the expected action.” Ariz.
17 R. Civ. P. 27(a)(1)(A), (C). Petitioner fails to establish these basic requirements.
18 I. The Petition Will Be Moot by the Time the Court Rules on It.
19 As Petitioner acknowledges [¶¶ 1, 4], Rule 27 discovery is only available to petitioners
20 who “cannot presently bring” their cause of action. Ariz. R. Civ. P. 27(a)(1)(A). A plaintiff can
21 bring an election contest only against a “person declared elected to a state office,” which occurs
22 after the Secretary completes the statewide canvass and “declare[s] elected the person receiving
23 the highest number of votes cast for each office.” A.R.S. §§ 16-648, 16-650.
24 Today at 11:00 a.m. the Secretary will complete the statewide canvass in the presence of
25 the Attorney General, Governor, and Chief Justice and certify the election results showing the
26 Biden Electors received the highest number of votes in the presidential race. If Petitioner has a
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1 cognizable election contest (which, for the reasons detailed below, she doesn’t) it will be ripe
2 today. Thus, Petitioner fails to satisfy Rule 27’s requirement that she “cannot presently bring”
3 her election contest, and the Petition must be denied as moot.
4 II. Petitioner’s Requested Discovery Is Unavailable for Election Contests.
5 Even if the Petition weren’t moot (it is), the Court should reject Petitioner’s transparent
6 attempt to side-step the election contest statutes and use Rule 27 for an improper purpose.
7 Rule 27 is not a vehicle “to discover evidence for the purpose of filing a complaint.”
8 Bryant v. Am. Fed’n of Musicians of the U.S. & Canada, 2015 WL 3644075, at *5-6 (S.D.N.Y.
9 June 1, 2015). Indeed, “[d]iscovery is authorized solely for parties to develop the facts in a
10 lawsuit in which a plaintiff has stated a legally cognizable claim, not in order to permit a plaintiff
11 to find out whether he has such a claim.” Gilford, 2012 WL 13130213, at *2 (quotation omitted).
12 But Petitioner does just that, claiming she “wishes to determine whether” election officials
13 approved and tabulated “insufficiently or falsely verified ballots” [¶ 11(a)], and asking to
14 compare duplicate ballots to original ballots to see if any were improperly duplicated [¶ 11(b)].
15 Election contests are serious business. They must rest on facts, not “mere suspicion and
16 conjecture of wrongdoing.” Hunt v. Campbell, 19 Ariz. 254, 264 (1917). Petitioner has no facts
17 to support her claims, which is why she is trying to use Rule 27 to uncover them. In fact,
18 Petitioner requests a “sampling” [¶ 11(a)] of the “(1,602,808) mail-in ballots [that] were
19 processed at the central Maricopa County Tabulation Election Center.” [Ex. 1 ¶ 19] In other
20 words, Petitioner knows of no errors, but she wants to inspect some random number of ballot
21 affidavits to see if she can find some. That is an obvious abuse of Rule 27 (and the election
22 contest process), and the Court should reject it.
23 Beyond that, Petitioner cannot use Rule 27 as a pre-litigation tool to avoid the
24 Legislature’s restriction on discovery in election contests. “[E]lection contests are purely
25 statutory, unknown to the common law, and are neither actions at law nor suits in equity, but are
26 special proceedings.” Griffin v. Buzard, 86 Ariz. 166, 168 (1959); Brown v. Superior Court, 81
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1 Ariz. 236, 239 (1956) (“It is fundamental that rules governing election contests are purely
2 statutory”); Barrera, 117 Ariz. at 529 (“The right to a . . . contest of the ballots cast at an election
3 did not exist at common law . . . and the granting of such right lies within the discretion of the
4 legislature.”) (citations omitted). They are thus the subject of deliberate legislative restriction,
5 and for good reason given Arizona’s “‘strong public policy favoring stability and finality of
6 election results.’” Ariz. City Sanitary Dist. v. Olson, 224 Ariz. 330, 334 ¶ 12 (App. 2010)
7 (quotation omitted).
8 With that in mind, the Legislature authorized only a single “discovery” device it deemed
9 relevant to an election contest: the inspection of “ballots” through a petition procedure that a
10 contestant may file only “[a]fter the statement of contest has been filed.” A.R.S. § 16-677(A).
11 This procedure also requires the contestant to satisfy certain conditions, such as posting a bond,
12 establishing that she “cannot properly prepare for trial” without the inspection, and agreeing to
13 pay inspection costs and expenses if she doesn’t prevail in the contest. A.R.S. § 16-677(B).
14 Contrary to these requirements, Petitioner asks for discovery before filing her election
15 contest (and without posting a bond or complying with other procedural requirements). Even
16 worse, she asks to inspect ballot return envelopes and “signatures on file” in voters’ registration
17 files, neither of which is a “ballot” and wouldn’t be subject to a court-ordered inspection even if
18 Petitioner had followed the proper procedures.5
19 III. Petitioner Does Not Have a “Cognizable” Election Contest Claim.
20 What is more, Petitioner cannot satisfy Rule 27’s “cognizable” cause of action
21 requirement because she attached a “proposed” election contest as Exhibit 1 to her Petition that
22 fails to state a legally cognizable claim. See In re Tsymbal, 2011 WL 8218997, at *15 (D.N.J.
23
24 5
In addition, the “inspection” requested by Petitioner “is not possible” because “[o]nce the
25 signature on affidavit envelope was verified, the ballot was removed from the envelope and sent
to be tabulated. There is no way to determine which ballot came in which envelope.” [Exhibit A
26 at ¶¶ 10-12]
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1 Dec. 9, 2011) (rejecting Rule 17 petition for lack of a “cognizable” claim when petitioner relied
2 only on “conclusory statements”); Four Directions v. Comm. on Judicial Conduct & Disability
3 of the Judicial Conference of the United States, 2015 WL 3409469, at *4 (N.D. Cal. May 27,
4 2015) (because the allegations in the complaint failed to state claim, plaintiffs had no “cognizable
5 claim” under Rule 27).
6 As noted above, election contests are “purely statutory,” Griffin, 86 Ariz. at 168, and the
7 statute carefully circumscribes the valid grounds of a contest. A.R.S. § 16-672(A) authorizes
8 election contests on these grounds: (1) “misconduct” by election officials; (2) the elected official
9 was ineligible for the contested office; (3) the contested elected official gave a “bribe or reward”
10 or “committed any other offense against the elective franchise”; (4) “illegal votes”; or (5)
11 because of an “erroneous count of votes,” the elected official “did not in fact receive the highest
12 number of votes for the office.”
13 These five statutory grounds are the only grounds on which an elector may contest the
14 results of an election, and Petitioner bears the burden to show that the contest is based on one of
15 these grounds. Henderson v. Carter, 34 Ariz. 528, 534–35 (1928) (contestant “assumes the
16 burden of showing that his case falls within the terms of the statute providing for election
17 contests”); see also Fish v. Redeker, 2 Ariz. App. 602, 606 (1966) (contestant failed to show that
18 conduct came “within the statutory definition of grounds for an election contest”). Beyond that,
19 Petitioner bears the burden of proving that she is entitled to the extraordinary remedy of
20 overturning the results of the presidential race. Arizona courts apply “all reasonable
21 presumptions” in “favor [of] the validity of an election,” Moore v. City of Page, 148 Ariz. 151,
22 159 (App. 1986), which control absent “a showing of fraud” or “a showing that . . . the result
23
24
25
26
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1 would have been different.” Id.6 The facts alleged in Petitioner’s proposed complaint cannot
2 carry this heavy burden.7
3 A. Petitioner’s Claims of “Misconduct” Are Barred by Laches.
4 To begin, laches bars Petitioner’s complaint [Ex. 1 ¶¶ 22] that observers were “at least
5 ten to twelve feet away” and thus couldn’t see voter signatures during the early ballot signature
6 verification process. The equitable doctrine of laches “will bar a claim if a party’s unreasonable
7 delay prejudices the opposing party or the administration of justice,” Lubin v. Thomas, 213 Ariz.
8 496, 497 ¶ 10 (2006). Petitioner checks off all the boxes.
9 During this election, political party observers were permitted to observe early ballot
10 processing, including signature verification, and in fact the Republican Party had observers
11 present to observe the early ballot affidavit signature verification process. [Ex. A at ¶¶ 12-13]
12 Petitioner’s failure to bring her claims at that time – or at any time in the nearly two
13 months since early voting began – is unreasonable. In deciding whether a plaintiff’s delay is
14 unreasonable, a court should consider “the justification for the delay, the extent of the plaintiff’s
15 advance knowledge of the basis for the challenge, and whether the plaintiff exercised
16 diligence[.]” Arizona Libertarian Party v. Reagan, 189 F. Supp. 3d 920, 923 (D. Ariz. 2016)
17 (citation omitted). Petitioner concedes that observers complained they couldn’t see the signature
18 verification process, [¶ 23 (alleging that observers complained and received “binoculars,” but
19 the voter signatures were still “almost completely unreadable”)], yet Petitioner did nothing more
20
6
21 Courts around the country require a similar showing. E.g., Martin v. Fulton Cty. Bd. of
Registration & Elections, 835 S.E.2d 245, 266–67 (Ga. 2019) (“[W]e presume that election
22 returns are valid, and the party contesting the election has the burden of showing an irregularity
or illegality sufficient to change or place in doubt the result of the election.”) (quotations and
23
alterations omitted); In re Nov. 2, 2010 Gen. Election For Office of Mayor in Borough of S.
24 Amboy, Middlesex Cty., 31 A.3d 945, 957 (N.J. App. Div. 2011) (“Technical irregularities which
do not affect the actual vote are not sufficient to set aside an election”).
25 7
The Secretary reserves the right to make these and other arguments in response to Petitioner’s
26 election contest, should it ultimately be filed.
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1 to remedy the issue. Instead, Petitioner waited until after her preferred candidate lost the election
2 to raise these complaints for the first time. See McComb v. Superior Court In & For Cty. of
3 Maricopa, 189 Ariz. 518, 526 (App. 1997) (“[A] candidate or other election participants should
4 not be allowed to . . . subvert the election process by intentionally delaying a request for remedial
5 action to see first whether they will be successful at the polls.”) (quotation omitted).
6 As explained below, there is no legal right to observe the signature verification process
7 and, moreover, no statutory basis to challenge signature mismatches. Even so, if Petitioner
8 believed she had a valid legal objection—as she (incorrectly) seems to think she does now [¶
9 21]—then she should have filed an emergency lawsuit then to correct this supposed
10 “misconduct” by election officials.8 Yet Petitioner or her allies waited until now to file this
11 lawsuit, when they could do the most damage to electoral systems and voter confidence.
12 Because Petitioner and her party’s observers failed to raise these concerns when it was
13 supposedly happening, even if their complaints were valid (which they aren’t, for the reasons
14 described below), it is no longer possible to address the issue. It was then that the best and most
15 accurate facts, witnesses, and information existed and when judicial intervention could have
16 remedied any alleged issues while the process was still ongoing. Petitioner’s inexcusable delay
17 prejudices the Secretary, the Defendants, the administration of justice, and above all else,
18 Arizona voters. Because laches precludes Petitioner’s claims, they aren’t “cognizable.”9
19
8
As Petitioner knows as Chair of the Arizona Republican Party, each political party may
20 designate representatives to act as early ballot challengers, and there is a process for timely
21 challenging early ballots. A.R.S. § 16-552(C). Signature mismatches are not a basis for
challenge, but even assuming they were, “[c]hallenges to early ballots must be submitted prior
22 to the opening of the early ballot affidavit envelope,” and a challenge “received after the affidavit
envelope containing the ballot has been opened may be summarily denied as untimely.” Election
23
Procedures Manual (“EPM”) Ch. 2 § 5.
24 9
If Petitioner challenges longstanding election procedures, [¶¶ 11-17 (complaints about the
25 signature verification process in general)], that claim is also barred by laches. See Tilson v.
Mofford, 153 Ariz. 468, 470 (1987) (electoral procedures “cannot be questioned after the people
26 have voted”).
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1 B. Petitioner’s Allegations Do Not Amount to “Misconduct.”
2 Petitioner alleges that county officials engaged in “misconduct” by (1) failing to allow
3 observers to stand close enough to watch the signature verification process for early ballots, and
4 (2) failing to allow observers to watch one step in the ballot duplication process. These
5 allegations do not—and cannot—amount to actionable “misconduct” because, contrary to
6 Petitioner’s erroneous assumption, nothing in the law entitles political party observers to a close-
7 up view of the signature verification process or duplication process. Beyond that, Petitioner fails
8 to allege facts sufficient to suggest any wrongdoing by Maricopa County officials, much less
9 overcome the presumption that election officials acted in good faith. And even if the County
10 improperly restricted observation (which they didn’t), a mere failure to comply with election
11 observation requirements is not a valid basis to sustain an election contest.
12 1. Petitioner Is Not Entitled to Her Preferred Method of Observation.
13 Neither Arizona statute nor the EPM grants observers the specific right to observe the
14 signature verification process or the duplication process. Instead, the EPM (at ch. 8, sec. III)
15 provides that County Recorder processing procedures (which includes signature verification)
16 and early voting may only be observed if permitted by the County Recorder or other officer in
17 charge of elections. In other words, observation is a discretionary privilege, not a right.
18 Here, Maricopa County chose to allow observation of early voting processing, but that
19 did not entitle political parties to observe in every way and in the exact proximity they desired.
20 Indeed, the purpose of allowing political party observers is to observe the process as a whole;
21 not to allow the observers to conduct signature verification or ballot duplication themselves.
22 Moreover, even if observers had a right to observe signature verification proceedings (which
23 they do not), Arizona law does not entitle observers to challenge early ballots on the grounds
24 that the signature was a mismatch and was improperly verified. The EPM (at ch. 2, sec. V)
25 provides that challenges to early ballots may only be made on either (or both) of the two grounds
26 listed in A.R.S. § 16-591: (1) that the person is not qualified to vote, or (2) that the person has
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1 already voted in the same election. Thus, Petitioner’s claim that the election results should be
2 overturned because of inadequate observation access—a claim that has been made over and over
3 again by the Trump Campaign as part of a national strategy to sow doubt about the integrity and
4 results of the election—has no legal foundation.10
5 2. Petitioner Cannot Overcome the Presumption of Regularity.
6 Even if Petitioner was entitled to her preferred method of observation (she is not), she
7 cannot overcome the presumption of regularity necessary to prevail in a contest. The “returns of
8 the election officers are prima facie correct,” and courts apply a presumption of “good faith and
9 honesty of the members of the election board” that must control unless there is “clear and
10 satisfactory proof.” Hunt, 19 Ariz. at 268; see also Burri v. Campbell, 102 Ariz. 541, 543 (1967)
11 (“It is a settled principle of law that official acts of public officers are presumed to be correct
12 and legal, in the absence of clear and convincing evidence to the contrary.”). To overcome this
13 strong presumption, Petitioner cannot rely on “mere suspicion and conjecture of wrongdoing.”
14 Hunt, 19 Ariz. at 264. But that’s exactly what Petitioner’s proposed complaint does.
15 For her claim over early ballots, Petitioner claims that election officials “potentially
16 allow[ed] falsely or insufficiently verified ballots to be counted,” [¶ 38 (emphasis added)], and
17 that she “has no way of knowing . . . whether falsely or insufficiently verified ballots were
18 counted.” [¶ 39] She also suggests [¶ 15] that Maricopa County election workers may have
19 accepted “false or copied signatures” on ballot affidavits. The basis for her concern about
20 fraudulent signatures? A “registered voter’s scanned signature [is] publicly available from the
21
10
That Petitioner is not entitled a front-row seat to the signature-verification and ballot
22
duplication processes is confirmed by recent decisions in other states rejecting similar claims.
23 See, e.g., Kraus v. Cegavske, 2020 WL 6483971, at *1 (Nev. Nov. 3, 2020) ; Stokke v. Cegavske,
No. 2:20-cv-02046 (D. Nev. Nov. 6, 2020); Constantino v. City of Detroit, __ N.W.2d __, 2020
24 WL 6882586, at *1 (Mich. Nov. 23, 2020); Constantino v. City of Detroit, No. 20-014780 (Mich.
25 Cir. Ct. Nov. 13, 2020) https://www.greatlakesjc.org/wp-content/uploads/Opinion-and-Order-
Judge-Kenny-Costantino.pdf; In re Canvassing Observation, 2020 WL 6737895, at *8–9 (Pa.
26 Nov. 17, 2020).
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1 Department of Motor Vehicles,” so “a voter’s signature relatively easy to reproduce.” [¶ 13]
2 Nonsense.
3 For one thing, Arizona and federal law circumscribe the release and use of personally
4 identifying information, including a person’s name, and other information on a driver’s license.
5 See A.R.S. §§ 28-440–458; 18 U.S.C. §§ 2721–2725. Indeed, there are very limited
6 circumstances under which a requestor can obtain this information, either because of a
7 specifically defined professional need or with the written consent of the individual. A.R.S. § 28-
8 455(C). What’s more, the requestor must also present personal identification and explain the
9 reason for making a request, A.R.S. § 28-449(B), which must be verified and maintained by the
10 Department, A.R.S. § 28-449(B), (D). The requestor also must certify, under penalty of perjury,
11 that the records are being used solely for the indicated purpose. Ariz. Dep’t of Transp. Motor
12 Vehicle Div., Motor Vehicle Record Request, https://apps.azdot.gov/files/mvd/mvd-forms-
13 lib/46-4416.pdf (last visited Nov. 28, 2020). And because records may not be disclosed in bulk
14 except under narrow circumstances, the requestor must ask for each record individually. A.R.S.
15 § 28-455(E). In short, the notion that a meaningful number of bad actors may have obtained
16 individual voters’ signatures from the MVD and fraudulently signed ballot affidavits in their
17 names is, frankly, absurd.
18 As for Petitioner’s claim about duplicated ballots, she claims that Maricopa County’s
19 ballot duplication software was “highly inaccurate,” leaving it to election workers or observers
20 to “catch” errors, [¶ 27]; that “for whatever reason,” the software erroneously prefilled “Biden”
21 “much more often” than “Trump,” [id.]; and that observers were “unable to observe” whether a
22 third-party vendor was receiving and “printing the correct ballots,” [¶ 26]. None of that is
23 misconduct by an election official.
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1 Petitioner tries to save her complaint by claiming [¶ 36] that “misconduct” includes any
2 “erroneous conduct without wrongful intention.”11 Not so. Under Arizona law, “honest mistakes
3 or mere omissions on the part of the election officers” are not enough to establish “misconduct.”
4 Findley v. Sorenson, 35 Ariz. 265, 269 (1929). Courts around the country agree that “a technical
5 error, without more,” cannot override the “constitutional right of the voters . . . to cast their vote
6 and have their vote counted.” Witten v. Butcher, 238 W. Va. 323, 329 (2016); see also, e.g., In
7 re Feb. 14, 2017, Special Election on Moses Lake Sch. Dist. #161 Proposition 1, 413 P.3d at 587
8 (“Elections cannot be held invalid nor the returns impeached for mere irregularities. Even gross
9 irregularities not amounting to fraud do not vitiate an election.”) (citation omitted).
10 Petitioner’s allegations that election officials didn’t “allow legal observers to observe”
11 fail to state a claim for an election contest based on “misconduct.”
12 3. Alleged Violations of Election Observation Requirements Cannot
Void the Election.
13
14 Petitioner also relies on the EPM and election statutes to claim [¶¶ 32-35] that election
15 officials violated a legal obligation to allow observers to watch the tabulation process. But early
16 ballot processing and ballot duplication are not part of the tabulation process. Thus, Petitioner’s
17 claim is based on the false assumption that she and her party were entitled to observe the
18 signature verification and ballot duplication processes. In any event, unless an election statute
19 “expressly provides that a failure to observe certain requirements invalidates the vote,” courts
20 will not “throw out” votes merely “because the [election officials] failed to comply with the
21 statutory regulations.” Findley, 35 Ariz. at 269. That is because “general statutes directing the
22 11
With no citation, Petitioner purports to quote [¶ 36] a California case interpreting misconduct
23 this way. The Secretary assumes Petitioner is quoting In re Cryer, 247 P. 252, 253 (Cal. Ct. App.
1926), which rejected a complaint like Petitioner’s. There, the court stressed that an election
24 contest must allege “at least some definite particularity in the charge of malconduct by election
25 officers” and rejected the plaintiff’s claim because, “[w]ithout the slightest emphasis on any part
of the conduct of the boards or officers of election,” the complaint was “not anything other than
26 a general charge that the election count was irregular and erroneous.” Id. at 233-54. So too here.
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1 mode of proceeding by election officers are deemed advisory, so that strict compliance with their
2 provisions is not indispensable to the validity of the proceedings themselves.” Id.; Chenoweth v.
3 Earhart, 14 Ariz. 278, 286 (1912) (if an election procedure does not “expressly declar[e] that a
4 failure . . . shall render the election void,” it is “directory only”); see also In re Feb. 14, 2017,
5 Special Election on Moses Lake Sch. Dist. #161 Proposition 1, 413 P.3d 577, 587 (Wash. App.
6 2018) (“Unless the statute . . . expressly provides that noncompliance with the statute renders
7 the election void, the court regards the statutory obligation as discretionary”).
8 Even if the law could be construed to require observation of early ballot signature
9 verification and ballot duplication, a failure to comply with A.R.S. §§ 16-621 and 16-552 cannot
10 overturn the election results, as Petitioner requests, because those statutes do not provide for that
11 remedy. Findley, 35 Ariz. 265 at 269; cf. Pacion v. Thomas, 225 Ariz. 168, 170–71 ¶ 12 (2010)
12 (rejecting election contest alleging violations of campaign finance statutes, and “declin[ing] to
13 infer a statutory remedy into the campaign finance statutes that the legislature eschewed”).
14 In the end, Petitioner’s allegation that election officials violated observer requirements,
15 even if accurate, without more, is not enough to invalidate the will of Arizona’s voters
16 C. Petitioner Fails to Allege A Single “Illegal Vote” Was Cast.
17 To prevail in a contest on this ground, the contestant has the burden of proving (1) that
18 illegal votes were cast and (2) that those illegal votes “were sufficient to change the outcome of
19 the election.” Moore v. City of Page, 148 Ariz. 151, 156 (App. 1986); see also Huggins v.
20 Superior Court In & For Cty. of Navajo, 163 Ariz. 348, 353 (1990). Plaintiff doesn’t even try to
21 allege facts that would establish either element.
22 Plaintiff wildly speculates that some votes may have been illegally cast because observers
23 were unable to see certain processes, [¶¶ 23, 26], that ballot duplication software was “highly
24 inaccurate” [¶ 27]; and that Donald Trump underperformed in one congressional district [¶ 28].
25 But those are not allegations that even a single illegal vote was cast, which is required to even
26 argue that the Court should invalidate the election results on this ground. In Moore, for example,
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1 even when the plaintiff established that certain citizens were unlawfully allowed to “maintain
2 their eligibility” to vote, the contest failed because the contestant didn’t prove “that any of these
3 ineligible citizens actually voted in the election.” 148 Ariz. at 156. The same is true here.
4 In all events, even if Petitioner could establish that some of these votes may have been
5 illegally cast, she fails to allege any facts to suggest that it would affect the outcome of the
6 election. In fact, she cannot allege any such facts because, at most, 104 ballots cast on Election
7 Day at Queen Creek-area vote centers were duplicated. [See Ex. A at ¶¶ 4-9] Given the 10,457
8 margin of victory in the presidential race in Arizona, Petitioner cannot show that these imaginary
9 “illegal votes” made any difference in the election. Moore, 148 Ariz. at 157 (election contest
10 also failed because, “considering the overwhelming number of votes by which the bonds were
11 approved, the outcome of the election could not have differed even if every illegal vote had
12 actually been cast in favor of the bond issue.”).
13 D. Petitioner Fails to Allege Facts to Suggest That Defendants Did Not Receive
the Highest Number of Votes.
14
15 Finally, for the same reason Petitioner fails to state a claim based on alleged “illegal
16 votes,” Petitioner fails to allege any facts to suggest that “by reason of erroneous count of votes,”
17 the Biden electors “did not in fact receive the highest number of votes” in the presidential race.
18 A.R.S. § 16-672(A)(5). It is not enough to allege that a Democratic candidate won in a
19 historically Republican district. At bottom, Petitioner’s disappointment [¶ 28] that “the results
20 in CDS/Queen Creek were strongly inconsistent with voter registration data (party affiliation)
21 and with historical voting data” does not support an inference that any votes were counted
22 incorrectly, let alone enough to change the outcome of the election. Coleman v. City of Mesa,
23 230 Ariz. 352, 356 ¶ 9 (2012) (courts accept “well-pleaded factual allegations and indulge all
24 reasonable inferences from those facts, but mere conclusory statements are insufficient.”).
25
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1 Conclusion
2 For all these reasons, Petitioner fails to meet the basic requirements of Rule 27, she cannot
3 prove that she has a “cognizable” claim, and the Court should deny her Petition, and award the
4 Secretary her attorneys’ fees under A.R.S. § 12-349 for being forced to continually respond to
5 frivolous litigation filed by Petitioner and her allies.
6 RESPECTFULLY SUBMITTED this 30th day of November, 2020.
7 COPPERSMITH BROCKELMAN PLC
8 By /s/ Roopali H. Desai
Roopali H. Desai
9 D. Andrew Gaona
10 Kristen Yost
Attorneys for Proposed Intervenor
11 Arizona Secretary of State Katie Hobbs
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1 ORIGINAL efiled and served via email
this 30th day of November, 2020, upon:
2
3 Dennis I. Wilenchik (admin@wb-law.com)
John “Jack” D. Wilenchik (jack@wb-law.com)
4 Lee Miller
Wilenchik & Bartness
5
2810 North 3rd Street
6 Phoenix, AZ 85004
admin@wb-law.com
7 Attorneys for Plaintiff
8
Sara R. Gonski (sgonski@perkinscoie.com)
9 Perkins Coie LLP
2901 North Central Avenue, Suite 2000
10 Phoenix, AZ 85012
11
Roy Herrera (herrerar@ballardspahr.com)
12 Daniel Arellano (arellanod@ballardspahr.com)
13 Ballard Spahr LLP
1 East Washington Street, Suite 2300
14 Phoenix, AZ 85004
Attorneys for Arizona Democratic Party
15
16 Thomas P. Liddy (liddyt@mcao.maricopa.gov)
Emily Craiger (craigere@mcao.maricopa.gov)
17 Joseph I. Vigil (vigilj@mcao.maricopa.gov)
18 Joseph J. Branco (brancoj@mcao.maricopa.gov)
Joseph LaRue (laruej@mcao.maricopa.gov)
19 Maricopa County Attorney’s Office
225 West Madison Street
20 Phoenix, AZ 85003
21 Attorneys for Maricopa County

22
/s/ Sheri McAlister
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EXHIBIT A