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Nos. 19-1257 & 19-1258
In the Supreme Court of the United States__________________MARK
BRNOVICH, ATTORNEY GENERAL OF ARIZONA, ET AL.,
Petitioners,v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.,
Respondents.-----------------------
ARIZONA REPUBLICAN PARTY, ET AL., Petitioners,
v.DEMOCRATIC NATIONAL COMMITTEE, ET AL.,
Respondents.__________________
On Writs of Certiorari to the United States Court ofAppeals for
the Ninth Circuit__________________
JOINT APPENDIX__________________JOSEPH A. KANEFIELDChief Deputy
and Chief of Staff Counsel of RecordOFFICE OF THE ARIZONA ATTORNEY
GENERAL2005 N. Central Ave.Phoenix, AZ 85004(602)
[email protected] for Mark Brnovich, et
al.MICHAEL A. CARVIN Counsel of RecordJONES DAY51 Louisiana Ave.,
N.W.Washington, DC 20001(202) [email protected]
for Arizona RepublicanParty, et al.
JESSICA RING AMUNSON Counsel of RecordJENNER & BLOCK LLP1099
New York Avenue NWSuite 900Washington, DC 20001(202)
[email protected] for Katie Hobbs,Arizona
Secretary of StateMARC ERIK ELIAS Counsel of RecordPERKINS COIE,
LLP700 13th St, NW, Ste. 800Washington, DC 20005-3960(202)
[email protected] for Democratic
NationalCommittee, et al.
November 30, 2020Petitions for Writs of Certiorari filed April
27, 2020
Petitions for Writs of Certiorari granted October 2, 2020
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i
JOINT APPENDIX
TABLE OF CONTENTS
Relevant Docket Entries United States DistrictCourt for the
District of Arizona (PhoenixDivision), No. 2:16-cv-01065-DLR . . .
. . . . . . JA 1
Relevant Docket Entries United States Court ofAppeals for the
Ninth Circuit, No. 18-15845 . . . . . . . . . . . . . . . . . . . .
. . . . . JA 13
Department of Justice Preclearance File BjellandMemo (June 23,
2011). . . . . . . . . . . . . . . . . . JA 33
Arizona Election Procedures Manual Excerpt(June 2014) . . . . .
. . . . . . . . . . . . . . . . . . . . . JA 37
Expert Report of Jonathan Rodden, PhD Excerpt(June 10, 2016) . .
. . . . . . . . . . . . . . . . . . . . . JA 42
Declaration of Brad Nelson Excerpt(August 22, 2016) . . . . . .
. . . . . . . . . . . . . . JA 112
Board worker Training Manual Primary ElectionExcerpt (August 30,
2016) . . . . . . . . . . . . . JA 115
Second Expert Report of Jonathan Rodden, PhD (May 26, 2017). . .
. . . . . . . . . . . . . . . . . . . . JA 120
Second Expert Report of Dr. Allan J. LichtmanExcerpt (May 26,
2017). . . . . . . . . . . . . . . . JA 199
Transcript of Bench Trial, Day 3 Excerpt (October 5, 2017) . . .
. . . . . . . . . . . . . . . . . . JA 201
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ii
Order in a Civil Case in the United States DistrictCourt for the
District of Arizona(May 8, 2018). . . . . . . . . . . . . . . . . .
. . . . . . JA 208
Judgment in a Civil Case in the United StatesDistrict Court for
the District of Arizona(May 8, 2018). . . . . . . . . . . . . . . .
. . . . . . . . JA 240
Amended Findings of Fact and Conclusions of Lawin the United
States District Court for theDistrict of Arizona (May 10, 2018) . .
. . . . . JA 242
Opinion and Dissenting Opinion in the UnitedStates Court of
Appeals for the Ninth Circuit (September 12, 2018) . . . . . . . .
. . . . . . . . . JA 360
Order in the United States Court of Appeals for theNinth Circuit
(January 2, 2019). . . . . . . . . JA 493
Brief for the United States as Amicus Curiae inSupport of
Appellees on Rehearing En Banc andSupporting Affirmance in the
United StatesCourt of Appeals for the Ninth Circuit (February 15,
2019) . . . . . . . . . . . . . . . . . . JA 495
Defendant-Appellee Arizona Attorney GeneralMark Brnovich’s
Motion to Take Judicial Noticein the United States Court of Appeals
for theNinth Circuit (March 14, 2019) . . . . . . . . . JA 526
Exhibit A to Motion - North Carolina StateBoard of Elections’
March 13, 2019 Order inIn re Investigation of Election
RegularitiesAffecting Counties Within the 9thCongressional District
. . . . . . . . . . . . . . JA 531
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iii
En Banc and Dissenting Opinions in the UnitedStates Court of
Appeals for the Ninth Circuit (January 27, 2020) . . . . . . . . .
. . . . . . . . . . JA 576
Order in the United States Court of Appeals for theNinth Circuit
(February 11, 2020) . . . . . . . JA 831
Order in the United States Court of Appeals for theNinth Circuit
(April 9, 2020) . . . . . . . . . . . JA 833
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JA 1
RELEVANT DOCKET ENTRIES
United States District Courtfor the District of Arizona
No. 2:16-cv-01065-DLR
Feldman, et al. v. Arizona Secretary of State’s Office,et
al.
Date Filed # Docket Text04/15/2016 1 COMPLAINT. Filing fee
received:
$ 400.00, receipt number 0970-12857791 filed by Kirkpatrick
forU.S. Senate, Julio Morera, LeslieFeldman, Arizona DemocraticP a
r t y , A l e j a n d r a R u i z ,Peterson Zah, DSCC,
DemocraticNational Committee, CleoOvalle, Mercedez Hymes,
LuzMagallanes, Marcia Baker(submitted by Daniel Barr).(Attachments:
#1 Civil CoverS h e e t ) ( K G M ) ( E n t e r e d
:04/15/2016)
04/19/2016 12 AMENDED COMPLAINTagainst All Defendants filed
byKirkpatrick for U.S. Senate,Julio Morera, Leslie Feldman,Arizona
Democratic Party,Alejandra Ruiz, Peterson Zah,DSCC, Democratic
NationalCommittee, Cleo Ovalle,Mercedez Hymes, LuzMagallanes,
Marcia
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JA 2
Baker.(Gonski, Sarah) (Entered:04/19/2016)
05/09/2016 39 MOTION to Intervene byArizona Republican
Party.(Attachments: # 1 PartialAnswer-in-Intervention otAmended
Complaint, # 2 Text ofProposed Order)(Johnson,Brett)(Entered:
05/09/2016)
05/10/2016 44 MINUTE ENTRY for proceedingsheld before Judge
Douglas LRayes: Telephonic Conference re:scheduling and discovery
relatedto the forthcoming Motion forPreliminary Injunction held
on5/10/2016. With no objection, ITIS ORDERED granting 27 Motionto
Intervene by Bernie 2016Incorporated; and granting 39Motion to
Intervene by ArizonaRepublican Party. After hearingfrom the
parties, the CourtORDERS the statewide voter fileshall be produced
to plaintiffs bythe State defendants. Motion forProtective Order
re: the statewidevoter file is due by no later thanFriday,
5/13/2016. Response tothe motion for protective order isdue by no
later than 5/20/2016.The parties are directed to meetand confer to
resolve any otherdiscovery requests. Telephonic
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JA 3
Conference set for 5/17/2016 at10:00 AM re: any
outstandingdiscovery requests not resolvedthrough the parties meet
andconfer. Counsel for plaintiffs isresponsible for making
thenecessary arrangements for theconference call. All
partiesparticipating in the conferencecall shall do so via a
landlineonly. The use of cellular phoneswill not be permitted.
Plaintiffs’Motion for Preliminary Injunctionshall be filed by no
later than6/10/2016. Defendants’ responsedue by no later than
7/25/2016.Plaintiffs’ reply due by no laterthan 8/1/2016. Oral
Argument onthe motion for preliminaryinjunction set for 8/12/2016
at9:00 AM in Courtroom 506, 401West Washington Street,Phoenix, AZ
85003 before JudgeDouglas L Rayes.
APPEARANCES: Telephonicappearance by Elisabeth Frost,Amanda
Callais, Daniel Barr,Marc Elias, and Sarah Gonski forPlaintiffs.
Telephonic appearanceby Andrew Gaona, AndrewGordon and Malcom
Seymour forIntervenor Plaintiff Bernie 2016Incorporated . Te
lephonic
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JA 4
appearance by Kara Karlson andKaren Hartman-Tellez forDefendants
Arizona Secretary ofState’s Office, Mark Brnovich,Michele Reagan.
Telephonicappearance by Colleen Conner,Joseph Vigil, and Thomas
Liddyfor Defendants Denny Barney,Steve Chucri, Steve Gallardo,Clint
Hickman, Andy Kunasek,Maricopa County Board ofSupervisors, Maricopa
CountyRec o rder and E lec t i onsDepartment, Karen Osborne,Helen
Purcell. Telephonicappearance by Brett Johnson,Sara Agne, and Tim
LaSota forIntervenor Defendant ArizonaRepublican Party.
(CourtReporter David German.)Hearing held 10:35 AM to 11:28AM. This
is a TEXT ENTRYONLY. There is no PDFdocument associated with
thisentry . (MMO) (Entered :05/10/2016)
05/16/2016 56 *MOTION to Intervene ofCounc i lman Bi l l Gates
,Councilwoman Suzanne Klapp,Sen. Debbie Lesko, and Rep. TonyRivero
by Arizona RepublicanParty, Bill Gates, Suzanne Klapp,Debbie Lesko,
Tony Rivero.
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JA 5
(Attachments: # 1 Exhibit, # 2Text of Proposed Order)(Agne,Sara)
*Modified to add filers on5/17/2016 (REK). (Entered:05/16/2016)
06/10/2016 72 MOTION for Pre l iminaryInjunction on Polling
PlaceAllocation and Provisional BallotClaims by Arizona
DemocraticParty, DSCC, DemocraticNational Committee, LeslieFeldman,
Hillary for America,Mercedez Hymes, Kirkpatrick forU.S. Senate, Luz
Magallanes,Julio Morera, Cleo Ovalle,Peterson Zah. (Attachments: #
1Text of Proposed Order)(Barr,Daniel) (Entered: 06/10/2016)
06/10/2016 84 MOTION for Prel iminaryInjunction of H.B. 2023
byArizona Democratic Party, DSCC,Democratic National
Committee,Leslie Feldman, Hillary forAmerica, Mercedez
Hymes,Kirkpatrick for U.S. Senate, LuzMagallanes, Julio Morera,
CleoO v a l l e , P e t e r s o n Z a h .(Attachments: # 1 Text
ofProposed Order)(Barr, Daniel)(Entered: 06/10/2016)
06/28/2016 126 ORDER granting 56 Motion toIntervene pursuant to
Fed. R.Civ. P. 24(b). (See Order for
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JA 6
details.) Signed by Judge DouglasL Rayes on 6/27/2016.
(MMO)(Entered: 06/28/2016)
09/23/2016 204 ORDER that the Joint Motion toStrike Portions of
Plaintiffs’Reply Memorandum and ReplyExhibits filed by Defendants
andthe ARP, 167 , is DENIED. IT ISFURTHER ORDERED thatPlaintiffs
Motion for PreliminaryInjunction of H.B. 2023, 84 , isDENIED.
Signed by JudgeDouglas L. Rayes on 9/23/16.(CLB) (Entered:
09/23/2016)
09/23/2016 206 *NOTICE OF INTERLOCUTORYAPPEAL to 9th Circuit
Court ofAppeals re: 204 Order on Motionfor Preliminary Injunction,
Orderon Motion to Strike by ArizonaDemocratic Party,
DSCC,Democratic National Committee,Leslie Feldman, Hillary
forAmerica, Mercedez Hymes,Kirkpatrick for U.S. Senate,
LuzMagallanes, Julio Morera,CleoOvalle, Peterson Zah. Filing
feereceived: $ 505.00, receiptn u m b e r 0 9 7 0 - 1 3 4 2 9 1 2 2
.(Attachments: # 1 Exhibit A-Court Order, # 2 Exhibit
B-Representation Statement)(Gonski, Sarah) *Modified tocorrect
event on 9/27/2016*
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JA 7
(REW). (Entered: 09/23/2016)10/11/2016 214 ORDER denying
Plaintiffs’ 72
Motion for Preliminary Injunctionon Provisional Ballot Claims.
(SeeOrder for details.) Signed byJudge Douglas L Rayes
on10/11/2016. (MMO) (Entered:10/11/2016)
10/15/2016 216 *NOTICE OF INTERLOCUTORYAPPEAL re Prel
iminaryInjunction to 9th Circuit Court ofAppeals re: 214 Order on
Motionfor Preliminary Injunction byArizona Democratic Party,
DSCC,Democratic National Committee,Leslie Feldman, Hillary
forAmerica, Mercedez Hymes,Kirkpatrick for U.S. Senate,
LuzMagallanes, Julio Morera, CleoOvalle, Peterson Zah. Filing
feereceived: $ 505.00, receiptn u m b e r 0 9 7 0 - 1 3 5 0 5 1 6 8
.(Attachments: # 1 Exhibit OrderDenying Plaintiffs’ Motion
forPreliminary Injunction, # 2E x h i b i t R e p r e s e n t a t i
o nStatement)(Gonski, Sarah)*Modified to correct event type
on10/17/2016 (LSP). (Entered:10/15/2016)
12/28/2016 233 *Second AMENDED COMPLAINTagainst Arizona
Secretary ofState’s Office, Mark Brnovich,
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JA 8
Michele Reagan filed by ArizonaDemocratic Party, DSCC,Democratic
National Committee.(Gonski, Sarah) *Modified text on12/28/2016
(REK). (Entered:12/28/2016)
03/03/2017 267 ORDER granting in part anddenying in part 245
Motion toDismiss Second AmendedComplaint as follows: TheArizona
Secretary of State’sOffice is hereby DISMISSEDfrom this action; and
The StateDefendant’s motion to dismiss forfailure to join a party
under Rule19 otherwise is DENIED. (SeeOrder for details.) Signed
byJudge Douglas L Rayes on3/3/2017. (MMO) (Entered:03/03/2017)
03/17/2017 268 State Defendants’ ANSWER to233 Amended Complaint
by MarkBrnovich, Michele Reagan.(LaRue, Joseph)
(Entered:03/17/2017)
04/13/2017 273 ORDER denying Intervenor-Defendants’ 244 Motion
toDismiss. (See Order for details.)Signed by Judge Douglas L
Rayeson 4/13/2017. (MMO) (Entered:04/13/2017)
04/27/2017 275 ANSWER to 233 AmendedComplaint by Arizona
Republican
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JA 9
Party, Bill Gates, Suzanne Klapp,Debbie Lesko, Tony
Rivero.(Johnson, Brett) (Entered:04/27/2017)
10/18/2017 392 Witness List by ArizonaDemocratic Party, DSCC,
andDemocratic National Committee.(MMO) (Entered: 10/19/2017)
10/18/2017 393 Witness List by Michele Reagan,Mark Brnovich,
ArizonaRepublican Party, Bill Gates,Suzanne Klapp, Debbie Lesko,and
Tony Rivero. (MMO)(Entered: 10/19/2017)
10/18/2017 394 Exhib i t L is t by Ar izonaDemocratic Party,
DSCC, andDemocratic National Committee.(MMO) (Entered
10/19/2017)
10/18/2017 395 Exhibit List by Michele Reagan,Mark Brnovich,
ArizonaRepublican Party, Bill Gates,Suzanne Klapp, Debbie Lesko,and
Tony Rivero. (MMO)(Entered: 10/19/2017)
* * *10/18/2017 410 Amended Witness List by Arizona
Democratic Party, DSCC, andDemocratic National Committee.(MMO)
(Entered: 05/07/2018)
* * *
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JA 10
05/08/2018 411 ORDER regarding evidentiaryissues: The parties’
objections tothe admissibility of variousdeposition designations
areaddressed as stated herein.Plaintiffs’ Exhibits 53, 54, 87,
and88 are admitted into evidence.Plaintiffs’ Exhibits 47 and 56
arenot admitted into evidence.Defendants 356 motion to excludeDr.
Lichtman’s expert witnesstestimony is GRANTED IN PARTand DENIED IN
PART asexplained herein. Defendants’ 356motion to exclude Dr.
Rodden’sexpert witness testimony isDENIED as explained herein.(See
Order for details.) Signed byJudge Douglas L Rayes on5/8/2018.
(MMO) (Entered:05/08/2018)
05/08/2018 413 CLERK’S JUDGMENT - IT ISORDERED AND ADJUDGEDthat
pursuant to the Court’sOrder filed May 8, 2018,judgment is entered
in favor ofdefendants and against plaintiffson all claims. This
action ishereby terminated. (ATD)(Entered: 05/08/2018)
05/09/2018 414 * NOTICE OF APPEAL to 9thCircuit Court of Appeals
re: 412Order on Motion for Judgment on
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JA 11
Partial Findings, 413 Judgmentby Arizona Democratic Party,DSCC,
Democratic NationalCommittee. Filing fee received:$ 505.00, receipt
number 0970-15480385. (Attachments: # 1Exhibit A - Findings of Fact
andConclusions of Law, # 2 ExhibitB - Representation
Statement)(Gonski, Sarah) * Modified to adddocument linkage on
5/9/2018(LAD). (Entered: 05/09/2018)
05/10/2018 416 AMENDED ORDER Findings ofFact and Conclusions of
Law -Defendants’ oral motion forjudgment on partial findings(Doc.
384 ) is DENIED as moot.The Court finds in favor ofDefendants and
against Plaintiffson all claims. The Clerk shallenter judgment
accordingly andterminate this case. Signed byJudge Douglas L Rayes
on5/10/18. (DXD) (Entered:05/10/2018)
05/10/2018 417 *AMENDED NOTICE O FAPPEAL to 9th Circuit Court
ofAppeals as to 18-15845 re: 414Notice of Appeal re: 416 Order,411
Order, 413 Clerks Judgmentby Arizona Democratic Party,DSCC,
Democratic NationalCommittee. (Attachments: # 1
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JA 12
Exhibit A - Amended Findings ofFact and Conclusions of Law, #
2Exhibit B - Judgment in a CivilCase, # 3 Exhibit C -
Orderregarding Evidentiary Issues, # 4Exhibit D -
RepresentationStatement)(Gonski, Sarah)*Modified text/linkage
on5/11/2018 (DXD). (Entered:05/10/2018)
05/17/2018 422 MOTION Motion for InjunctionPending Appeal re:
420Telephone Conference, CommonPrompts (Text Only) by
ArizonaDemocratic Party, DSCC,Democratic National
Committee.(Attachments: # 1 Text ofProposed Order Proposed
Order)(Gonski, Sarah) (Entered:05/17/2018)
05/25/2018 428 ORDER denying Plaintiffs’ 422Motion for an
injunction pendingappeal. Signed by Judge DouglasL Rayes on
5/25/2018. (MMO)(Entered: 05/25/2018)
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JA 13
RELEVANT DOCKET ENTRIES
United States Court of Appeals for the Ninth Circuit
No. 18-15845
The Democratic National Committee, et al. v. MicheleReagan, in
her official capacity as Secretary of State
of Arizona, et al.
Date Filed # Docket Text
05/10/2018 1 DOCKETED CAUSE ANDENTERED APPEARANCES OFCOUNSEL.
SEND MQ: Yes. Theschedule is set as follows:Mediation Questionnaire
due on05/17/2018. Transcript ordered by06/08/2018. Transcript
due07/09/2018. Appellants DSCC,The Arizona Democratic Partyand The
Democratic NationalCommittee opening brief due08/17/2018. Appellees
MarkBrnovich, Attorney General, BillGates, Suzanne Klapp,
DebbieLesko, Michele Reagan, TonyRivero and The ArizonaRepublican
Party answering briefdue 09/17/2018. Appellant’soptional reply
brief is due 21 daysafter service of the answeringbrief. [10867967]
(JBS) [Entered:05/10/2018 09:39 AM]
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JA 14
05/11/2018 3 Received copy of amended noticeof appeal from
district court.[10869486] (RR) [Entered:05/11/2018 10:23 AM]
05/18/2018 5 Filed (ECF) Appellants DSCC,The Arizona Democratic
Partyand The Democratic NationalCommittee Motion to expeditecase.
Date of service: 05/18/2018.[10878626] [18-15845] (Gonski,Sarah)
[Entered:05/18/2018 05:18PM]
05/21/2018 7 Filed (ECF) Appellees Mr. MarkBrnovich and Michele
Reaganresponse to motion ([5] Motion(ECF Filing), [5] Motion
(ECFFiling) motion to expedite case).Date of service:
05/21/2018.[10879144] [18-15845] (Hartman-Tellez, Karen)
[Entered:05/21/2018 09:59 AM]
05/21/2018 10 Filed (ECF) Appellees TheArizona Republican Party,
BillGates, Suzanne Klapp, DebbieLesko and Tony Rivero
responsejoining motion ([5] Motion (ECFFiling), [5] Motion (ECF
Filing)motion to expedite case). Date of
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JA 15
service: 05/21/2018. [10879623][18-15845] (Johnson,
Brett)[Entered: 05/21/2018 11:45 AM]
06/01/2018 18 Filed order (SIDNEY R.THOMAS, DIARMUID
F.O’SCANNLAIN, SUSAN P.G R A B E R , W I L L I A M A .FLETCHER,
JOHNNIE B.RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M.
CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS) The en
banc court haselected to decline originaljurisdiction over this new
appeal,but will retain jurisdiction overany subsequent en banc
hearing,if any. The motion to refer thecase to the original three
judgepanel is GRANTED. See GeneralOrder 3.6.b. The three judge
panelhas agreed to accept the newappeal as a comeback case.
Allother motions are referred to thethree judge panel.
[10892766](WL) [Entered: 06/01/2018 09:06AM]
06/21/2018 22 Filed order (SIDNEY R.THOMAS, CARLOS T. BEA
andSANDRA S. IKUTA) The
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JA 16
Plaintiffs-Appellants’ motion toexpedite is granted. The
openingbrief shall be filed on or beforeJuly 3; the answering brief
shallbe filed on or before July 10; andthe reply brief shall be
filed on orbefore July 17. The time and placefor oral argument
shall be set byseparate order. The Court willdefer consideration of
the motionfor an injunction pending appealuntil oral argument is
heard.[10916893] (WL) [Entered:06/21/2018 09:11AM]
07/03/2018 26 Submitted (ECF) Opening Brieffor review. Submitted
byAppellants DSCC, The ArizonaDemocratic Party and TheDemocratic
National Committee.Date of service: 07/03/2018.[10931552]
[18-15845] (Gonski,Sarah) [Entered: 07/03/2018 11:54PM]
07/04/2018 27 Submitted (ECF) excerpts ofrecord. Submitted by
AppellantsDSCC, The Arizona DemocraticParty and The
DemocraticNational Committee. Date ofservice: 07/03/2018.
[10931554][18-15845] (Gonski, Sarah)[Entered: 07/04/2018 12:05
AM]
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JA 17
07/10/2018 35 Submitted (ECF) Answering Brieffor review.
Submitted byAppellees Mr. Mark Brnovich andMichele Reagan. Date of
service:07/10/2018. [10937664] [18-15845]--[COURT UPDATE:Attached
corrected brief .07/11/2018 by SLM] (Draye,Dominic) [Entered:
07/10/201806:54 PM]
07/10/2018 36 Submitted (ECF) Answering Brieffor review.
Submitted byAppellees Bill Gates, SuzanneKlapp, Debbie Lesko, Tony
Riveroand The Arizona RepublicanParty. Date of service:
07/10/2018.[10937666] [18-15845]--[COURTUPDATE: Attached
correctedbrief and updated docket text toreflect correct brief
type.07/11/2018 by SLM] (Johnson,Brett) [Entered: 07/10/2018
07:16PM]
07/10/2018 37 Submitted (ECF) supplementalexcerpts of record.
Submitted byAppellees The Arizona RepublicanParty, Tony Rivero,
Debbie Lesko,Suzanne Klapp and Bill Gates.Date of service:
07/10/2018.[10937668] [18-15845]--[COURTUPDATE: Attached
corrected
-
JA 18
excerpts of record. 07/11/2018 bySLM] (Johnson, Brett)
[Entered:07/10/2018 07:27 PM]
07/17/2018 45 Submitted (ECF) Reply Brief forreview. Submitted
by AppellantsDSCC, The Arizona DemocraticParty and The
DemocraticNational Committee. Date ofservice: 07/17/2018.
[10946124][18-15845] (Gonski, Sarah)[Entered: 07/17/2018 11:32
PM]
07/17/2018 46 Submitted (ECF) further excerptsof record.
Submitted byAppellants DSCC, The ArizonaDemocratic Party and
TheDemocratic National Committee.Date of service:
07/17/2018.[10946126] [18-15845] (Gonski,Sarah) [Entered:
07/17/2018 11:38PM]
07/20/2018 50 ARGUED AND SUBMITTED TOSIDNEY R. THOMAS, CARLOST.
BEA and SANDRA S. IKUTA.[10950242] (SME) [Entered:07/20/2018 02:32
PM]
09/12/2018 52 FILED OPINION (SIDNEY R.THOMAS, CARLOS T. BEA
andSANDRA S. IKUTA) We deferredconsideration of DNC’s motion foran
injunction pending appeal.
-
JA 19
Because we affirm the districtcourt, we now DENY that motionas
moot. AFFIRMED. Judge: SRTDissenting, Judge: SSI Authoring.F I L E
D A N D E N T E R E DJUDGMENT. [11008348] (RMM)[Entered: 09/12/2018
07:20 AM]
09/12/2018 53 Filed (ECF) Appellants DSCC,The Arizona Democratic
Partyand The Democratic NationalCommittee petition for rehearingen
banc (from 09/12/2018 opinion).Date of service:
09/12/2018.[11009837] [18-15845]--[COURTUPDATE: Attached correct
PDFof opinion. 09/13/2018 by SLM](Gonski, Sarah)
[Entered:09/12/2018 08:32 PM]
09/24/2018 54 Submitted (ECF) Amicus brief forreview (by
government or withconsent per FRAP 29(a)).Submitted by American
CivilLiberties Union & American CivilLiberties Union of
Arizona. Dateof service: 09/24/2018. [11023634][18-15845] (Ho,
Dale) [Entered:09/24/2018 06:58 PM]
09/25/2018 57 Filed order (SIDNEY R.THOMAS, CARLOS T. BEA
andSANDRA S. IKUTA) Appellees
-
JA 20
are directed to file a response toappellants’ petition for
rehearingen banc filed September 12, 2018.The response shall not
exceed 15pages or 4200 words and shall befiled within 21 days of
the date ofthis order. [11023946] (WL)[Entered: 09/25/2018 09:30
AM]
09/26/2018 58 Filed (ECF) Appellants DSCC,The Arizona Democratic
Partyand The Democratic NationalCommittee petition for rehearingen
banc (from 09/26/2018 opinion).Date of service:
09/26/2018.[11026035] [18-15845] (Gonski,Sarah) [Entered:
09/26/2018 11:17AM]
10/16/2018 59 Filed (ECF) Appellees MicheleReagan and Mr. Mark
Brnovichresponse to petition for rehearingen banc. Date of
service:10/16/2018. [11049290]. [18-15845]--[COURT UPDATE:Edited
docket text to reflectcontent of filing. 10/16/2018 byRY] (Draye,
Dominic) [Entered:10/16/2018 04:09 PM]
10/16/2018 60 Filed (ECF) Appellees Bill Gates,Suzanne Klapp,
Debbie Lesko,Tony Rivero and The Arizona
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JA 21
Republican Party response toPetition for Rehearing En Banc(ECF
Filing), Petition forRehearing En Banc (ECF Filing).Date of
service: 10/16/2018.[11049451]. [18-15845] (Johnson,Brett)
[Entered:10/16/2018 05:08PM]
10/26/2018 62 Filed (ECF) Appellants DSCC,The Arizona Democratic
Partyand The Democratic NationalCommittee Corrected Motion tofile
supplemental brief for petitionfor rehearing. Date of
service:10/26/2018. [11061890] [18-15845](Gonski, Sarah)
[Entered:10/26/2018 11:09 AM]
10/29/2018 63 Filed (ECF) Appellees Bill Gates,Suzanne Klapp,
Debbie Lesko,Tony Rivero and The ArizonaRepublican Party
responseopposing motion ([62] Motion(ECF Filing), [62] Motion
(ECFFiling)). Date of service:10/29/2018. [11065050]
[18-15845](Johnson, Brett) [Entered:10/29/2018 04:55 PM]
11/01/2018 64 Filed order (SIDNEY R.THOMAS, CARLOS T. BEA
andSANDRA S. IKUTA) Appellants’
-
JA 22
corrected motion for leave to file areply brief in support of
theirpetition for rehearing en banc(Dkt. # [62]) is GRANTED.
Thereply brief submitted on October26, 2018 (Dkt. # [62]), shall
bedeemed filed as of the date of thisorder. Appellants’ previous
motionfor leave to file a reply brief insupport of their petition
forrehearing en banc (Dkt. # [61]) isDENIED as moot. [11069230](WL)
[Entered: 11/01/2018 04:06PM]
11/01/2018 65 Filed (ECF) Appellants DSCC,The Arizona Democratic
Partyand The Democratic NationalCommittee reply to petition
forrehearing en banc. Date of service:10/26/2018.
[11069315].--[COURTENTERED FILING to correctentry [62].] --[Edited:
Forward-dated entry to reflect correct filingdate. 11/02/2018 by
TYL] (SLM)[Entered: 11/01/2018 04:32 PM]
01/02/2019 68 Filed Order for PUBLICATION(SIDNEY R. THOMAS) Upon
thevote of a majority of nonrecusedactive judges, it is ordered
thatthis case be reheard en bancpursuant to Federal Rule of
-
JA 23
Appellate Procedure 35(a) andCircuit Rule 35-3. The
three-judgepanel disposition in this case shallnot be cited as
precedent by or toany court of the Ninth Circuit.Judge McKeown did
notparticipate in the deliberations orvote in this case.
[11138974](RMM) [Entered: 01/02/2019 02:13PM]
01/23/2019 79 Submitted (ECF) Amicus brief forreview and filed
Motion to becomeamicus curiae. Submitted byAmerican Civil Liberties
Union;American Civil Liberties Union ofArizona. Date of
service:01/23/2019. [11163991] [18-15845](Ho, Dale) [Entered:
01/23/201903:32 PM]
02/04/2019 83 Appellee Michele Reagan in 18-15845 substituted by
AppelleeKatie Hobbs in 18-15845[11177394] (JFF) [Entered:02/04/2019
10:02 AM]
02/15/2019 86 Submitted (ECF) Amicus brief forreview (by
government or withconsent per FRAP 29(a)).Submitted by United
States ofAmerica. Date of service:02/15/2019. [11197851]
[18-15845]
-
JA 24
(Chandler, Thomas) [Entered:02/15/2019 03:36 PM]
02/15/2019 87 Filed clerk order: The amicusbrief [86] submitted
by TheUnited States is filed. No papercopies are required at this
time.[11197949] (SML) [Entered:02/15/2019 04:14 PM]
02/19/2018 88 Filed order (SIDNEY R.THOMAS) The motion of
theAmerican Civil Liberties Unionand American Civil LibertiesUnion
of Arizona for leave to filean amicus curiae brief isGRANTED. The
amicus briefsubmitted on January 23, 2019,shall be filed.
[11198748] (WL)[Entered: 02/19/2019 10:11 AM]
02/19/2019 89 Filed clerk order: The amicusbrief [79] submitted
by ACLU andAmerican Civil Liberties Union ofArizona is filed. No
paper copiesare required at this time.[11199761] (SML)
[Entered:02/19/2019 02:44 PM]
02/19/2019 90 Filed order (SIDNEY R.THOMAS) Oral argument in
thisen banc case will be held at 1:00p.m. on Wednesday, March
27,2019, in Courtroom One of the
-
JA 25
James R. Browning Courthouse,located at 95 Seventh Street inSan
Francisco, California
94103.http://www.ca9.uscourts.gov/information/locations.php
[11199830](WL) [Entered: 02/19/2019 02:58PM]
02/25/2019 95 Filed order (SIDNEY R.THOMAS) The unopposed
motionof the United States to participatein en banc oral argument
insupport of Appellees isGRANTED. The United Statesshall have ten
minutes ofAppellees’ allotted argument time.[11205789] (WL)
[Entered:02/25/2019 10:25 AM]
03/14/2019 102 Filed (ECF) Appellee Mr. MarkBrnovich Motion to
take judicialnotice of the North Carolina StateBoard of Elections’
March 13,2019 Order in In re Investigationof Election Regularities
AffectingCounties Within the 9thCongressional District. Date
ofservice: 03/14/2019. [11228572][18-15845] (Pappas,
Andrew)[Entered: 03/14/2019 04:43 PM]
03/18/2019 103 Filed order (SIDNEY R.THOMAS)
Defendant-Appellee
-
JA 26
A t t o r n e y G e n e r a l M a r kBrnovich’s motion for
judicialnotice, filed March 14, 2019, isGRANTED. [11232570]
(WL)[Entered: 03/18/2019 03:47 PM]
03/27/2019 104 ARGUED AND SUBMITTED TOS I D N E Y R . T H O M A
S ,DIARMUID F. O’SCANNLAIN,SUSAN P. GRABER, WILLIAMA. FLETCHER,
JOHNNIE B.RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M.
CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS.
[11244927] (WWP)[Entered: 03/28/2019 09:51 AM]
01/27/2020 123 FILED OPINION (SIDNEY R.THOMAS, DIARMUID
F.O’SCANNLAIN, WILLIAM A.FLETCHER, MARSHA S.B E R Z O N , J O H N N
I E B .RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M.
CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS) REVERSED
ANDREMANDED. Judge: WAFA u t h o r i n g , J u d g e : P J
WConcurring, Judge: DFO
-
JA 27
D i s s e n t i n g , J u d g e : J S BDissent ing. FILED ANDE N
T E R E D J U D G M E N T .[11574519]--[Edited 03/25/2020(attached
corrected PDF -corrections made) by AKM](AKM) [Entered: 01/27/2020
08:21AM]
01/31/2020 124 Filed (ECF) Appellee Mr. MarkBrnovich Motion to
stay themandate. Date of service:01/31/2020. [11581261]
[18-15845](Skinner, Oramel) [Entered:01/31/2020 02:21 PM]
02/03/2020 125 Filed (ECF) Appellees Bill Gates,Suzanne Klapp,
Debbie Lesko,Tony Rivero and The ArizonaRepublican Party Motion to
staythe mandate. Date of service:02/03/2020. [11583263]
[18-15845](Johnson, Brett) [Entered:02/03/2020 03:10 PM]
02/10/2020 126 Filed (ECF) Appellants DSCC,The Arizona
Democratic Partyand The Democratic NationalCommittee response to
motion([124] Motion (ECF Filing), [124]Motion (ECF Filing)). Date
of
-
JA 28
service: 02/10/2020. [11591927][18-15845] (Spiva,
Bruce)[Entered: 02/10/2020 03:16 PM]
02/11/2020 127 Filed order (SIDNEY R.THOMAS, DIARMUID
F.O’SCANNLAIN, WILLIAM A.FLETCHER, MARSHA S.B E R Z O N , J O H N N
I E B .RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M.
CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS):
Defendant-AppelleeArizona Attorney General MarkBrnovich’s motion to
stay theissuance of this Court’s mandatepending application for
writ ofcertiorari (Dkt. [124]), filedJanuary 31, 2020, is
GRANTED.Fed. R. App. P. 41(b). [11592966](AF) [Entered: 02/11/2020
10:54AM]
03/03/2020 128 Filed (ECF) State of ArizonaMotion to intervene.
Date ofservice: 03/03/2020. [11615900][18-15845](Skinner,
Oramel)[Entered: 03/03/2020 08:54 AM]
03/13/2020 132 Filed (ECF) Appellants DSCC,The Arizona
Democratic Party
-
JA 29
and The Democratic NationalCommittee response opposingmotion
([128] Motion (ECFFiling), [128] Motion (ECFFiling)). Date of
service:03/13/2020. [11629395] [18-15845](Spiva, Bruce)
[Entered:03/13/2020 01:05 PM]
03/13/2020 133 Filed (ECF) Appellee Katie Hobbsresponse opposing
motion ([128]Motion (ECF Filing), [128] Motion(ECF Filing)). Date
of service:03/13/2020. [11629502] [18-15845](Amunson, Jessica)
[Entered:03/13/2020 01:53 PM]
03/19/2020 134 Filed (ECF) Intervenor - PendingState of Arizona
reply to response(). Date of service: 03/19/2020.[11635923]
[18-15845] (Skinner,Oramel) [Entered: 03/19/202005:01 PM]
04/09/2020 137 Filed order (SIDNEY R.THOMAS, DIARMUID
F.O’SCANNLAIN, WILLIAM A.FLETCHER, MARSHA S.B E R Z O N , J O H N N
I E B .RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M.
CALLAHAN,MARY H. MURGUIA, PAUL J.
-
JA 30
WATFORD and JOHN B.OWENS): The State of Arizona’smotion to
intervene [D.E. [128]] isGRANTED. Judge Owens dissentsfrom this
order. [11656097] (AF)[Entered: 04/09/2020 09:31 AM]
04/15/2020 138 Filed order (SIDNEY R.THOMAS, DIARMUID
F.O’SCANNLAIN, WILLIAM A.FLETCHER, MARSHA S.B E R Z O N , J O H N N
I E B .RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M.
CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS) On
February 11, 2020,this Court issued an order stayingissuance of the
mandate pendingthe filing and disposition of apetition for writ of
certiorari withthe United States Supreme Court.Because of the
current nationalhealth emergency, the SupremeCourt has extended
filingdeadlines for such petitions to 150days from issuance of
thechallenged decision. If appelleesdo not file a petition for writ
ofcertiorari within the original 90-day deadline of April 27, 2020,
itis very unlikely that the Supreme
-
JA 31
Court will be able to rule on apetition before the
Novemberelection. Consequently, within 7days after the date of this
order,appellees shall respond and showcause why the mandate
shouldnot issue on April 27, 2020.Appellants may file a reply to
theresponse within 2 days of serviceof the response. [11661743]
(OC)[Entered: 04/15/2020 11:48AM]
04/17/2020 139 Filed (ECF) Appellees Bill Gates,Suzanne Klapp,
Debbie Lesko,Tony Rivero and The ArizonaRepublican Party response
toorder to show cause dated04/15/2020. Date of service:04/17/2020.
[11663897] [18-15845](Johnson, Brett) [Entered:04/17/2020 09:00
AM]
04/22/2020 140 Filed (ECF) Appellee Mr. MarkBrnovich and
Intervenor State ofArizona response to order to showcause dated
04/15/2020. Date ofservice: 04/22/2020. [11668899][18-15845]
(Skinner, Oramel)[Entered: 04/22/2020 04:23 PM]
05/21/2020 146 Filed order (SIDNEY R.THOMAS, DIARMUID
F.O’SCANNLAIN, WILLIAM A.
-
JA 32
FLETCHER, MARSHA S.B E R Z O N , J O H N N I E B .RAWLINSON,
RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M. CALLAHAN,MARY H.
MURGUIA, PAUL J.WATFORD and JOHN B.OWENS) Appellees have
notifiedthis Court that they have filed apetition for writ of
certiorari withthe United States Supreme Court.Consequently, the
April 15, 2020order to show cause is dismissedand the mandate
remains stayedpending disposition of thatpetition. [11697751]
(WL)[Entered: 05/21/2020 10:44 AM]
-
JA 33
Not Confidential
Memorandum of Telephonic Communication
Date: 6/23/2011
Attorney/Analyst: John Powers
File No.: 2011-1619
Other Party: Amy Bjelland, Esq.
Race:
Tel. No.: 602-615-8562
Title/Organization: Arizona Elections Director
Jurisdiction: State of Arizona
Subject: Chapter 105 (S.B. 1412) (2011)
Ms. Bjelland says that she and other members of theArizona
Secretary of State’s office worked with SenatorShooter in drafting
the proposed legislation. The reasonis that he had initially
proposed some ideas that theoffice did not think were workable. For
example, hefirst wanted to eliminate the vote by mail
processentirely, then he wanted to ban people from bringing inten
or more mail ballots at time. As a result, she is veryknowledgeable
about the S.B. 1412 and the process bywhich it was adopted.
S.B. 1412 was targeted at voting practices inpredominantly
Hispanic areas in the southern portionof the state near the Arizona
border. Shooter andothers were mainly concerned about practices in
SanLuis, which is a border town in Yuma County, but
-
JA 34
concerns were also raised by legislators aligned withthe Tea
Party who represent the southern parts ofPima and Cochise Counties.
The purpose is to preventillegal immigrants, persons with green
cards who areineligible to vote, and other persons who are
notregistered voters from participating in the
electoralprocess.
The event that spurred the legislation involved adispute that
arose in San Luis, a small city in YumaCounty located in what is
called “south county,” on theborder with Mexico. A large majority
of the populationof the city are Hispanics. Two Hispanic women
whohad previously worked on campaigns together had abitter falling
out. One of the women wrote a letter to alocal council member named
David Luna, in which sheaccused the other woman of engaging in
voter fraud,and admitted doing so herself when they workedtogether.
Luna forwarded the complaint, which wasoriginally written in
Spanish, to the Secretary ofState’s office, who forwarded it on to
the FBI.
Both the FBI and the Secretary of State’s office lookedinto the
matter and found no evidence of wrongdoing.The FBI eventually
closed its investigation, while theSecretary of State monitored
elections in Yuma Countyduring the 2009 election cycle, again
finding nothing.However, the allegations were picked up by
TeaPartiers and Republican candidates in the area, andthe issue
received a lot of press attention.
She says that she does not know how widespread theproblem is,
but in her opinion “it is part of life in SanLuis of how things
have been run for years.” She thinksthe problem may result “from
the different way that
-
JA 35
Mexicans do their elections.” She says that there iscorruption
in the government and the voting process inMexico, and that people
who live close to the border aremore impacted by that. She grew up
in Tucson, andwas told growing up that you have to be careful
inMexico because you cannot trust their government theway you can
trust the United States government.These problems may have crossed
the border.
The photo identification requirement was SenatorShooter’s idea.
His understanding is that politicalmachines fill their car trunks
with ballots and thentake them to the county recorder’s office. The
photoidentification provision will prevent people frombringing in
“buckets full of ballots” because individualswill be accountable
and possibly prosecuted if theyviolate the law. She notes that this
piece will be harderto manage from a procedural perspective,
because it isa significant change from current practice.
The procedure for posting on the Secretary of State’swebsite was
created her office as a way of placatingSenator Shooter. He wanted
to ban the processentirely, but the Secretary of State’s office
maintainedthat it wanted to accumulate evidence that voter fraudwas
occurring before taking that step. This way, theSecretary of State
can track this information officiallyand it can be determined
whether or not mail ballotfraud is a problem that needs to be
addressed.
Many in the Secretary of State’s office were worriedabout the
Section 5 review of S.B. 1412. She wasworried that Senator Shooter
may have “bit off morethan he can chew.” She asks if the Department
ofJustice can preclear part of the bill, or it has to review
-
JA 36
everything together, to which I respond different votingchanges
can receive different determinations.
The Secretary of State would have to approve rulesregarding the
process for retaining information fromthe person’s photo
identification as part of the recordsof the voting location. The
Secretary of State does not,however, have to approve rules related
to whatinformation would be posted on its website onlinebecause it
is just a report. She says that it has notdetermined what
information will be on the reports,but says that the information
will not be “personal.”
-
JA 37
ARIZONA ELECTIONPROCEDURES MANUAL
June 2014
Excerpts pp.185-186
Verification of Provisional Ballots
Time for Verification
Verify all provisional ballots for proper registrationwithin 10
calendar days after a general election thatincludes an election for
a federal office and within fivebusiness days for all other
elections.
The provisional ballot shall be counted if:
• the registration of the voter is verified and thevoter is
eligible to vote in the precinct, and
• the voter’s signature does not appear on anyother signature
roster for that election, and
• there is no record that the voter voted early forthat
election.
If a signature roster or early ballot informationindicates that
the person already voted in that electionthe provisional ballot for
that person shall:
• remain unopened,
• not be counted, and
• be retained in the same manner as voted ballots.
The ballot shall remain unopened and shall not becounted if:
-
JA 38
• the voter is not registered to vote, or
• the voter is in the wrong precinct/voting area, or
• the voter has not produced sufficientidentification, or
• the voter’s signature does not match thesignature on his/her
voter registration form, or
• the voter voted their early ballot.
The County Recorder’s office shall create a provisionalballot
record for the voter that contains the followinginformation:
• provisional ballot receipt number
• name of voter
• precinct where provisional ballot was voted
• provisional ballot status
• provisional ballot status reason
• address (optional)
• date of birth (optional)
• political party (optional)
This information will be used for online verification ofa
voter’s provisional ballot. All provisional ballots forthe election
must be processed before posting this dataon the Internet. The
information shall be available tothe public online for one month
after posting.
-
JA 39
Rejection Reason Code
The rejection reason code is determined at the CountyRecorder’s
office. The rejection reasons are:
• not registered
• no ballot in envelope
• registered after 29-day cut-off
• no signature
• insufficient/illegible information
• signature does not match
• wrong party
• outside jurisdiction ballot
• voter challenge upheld
• voted in wrong precinct
• voted and returned an early ballot
• proper identification not provided by deadline
• administrative error
• not eligible
• other (please specify)
[ARS § 16-584(E)]
-
JA 40
Excerpts p.221
Additional Reporting
In addition to the general election canvass, the countyshall
submit additional reports to the Secretary ofState at the time they
are certifying their generalelection results. Each report shall
include statistics forthe federal primary and general elections.
The reportsare the Provisional Ballot Reporting,
AccessibilityReport, Voter Education Report, and Poll
WorkerTraining Report.
Provisional Ballot Reporting
With respect to the voter registration of each county,the
following information will be collected to measurecompliance
performance and reported to the Secretaryof State (see Provisional
Ballot Report on pg. 368):
• The number of provisional ballots in eachprecinct
• The number of voters in each precinct
• The number of provisional ballots that wereverified and
counted in each precinct
• The number of provisional ballots not counted ineach precinct
and the reason for not counting,such as:
1. Not registered
2. Wrong precinct
3. Not eligible to vote
-
JA 41
• Whether the uniform procedures were followedfor determining
whether a provisional ballot iscounted or not counted
-
JA 42
June 10, 2016
United States District Court for the District ofArizona
Feldman, et al. v. Arizona Secretary of State’sOffice, et
al.
Case No. 16-1065-PHX-DLR
Expert Report of Jonathan Rodden, PhD
737 Mayfield Avenue Stanford, CA 94305
/s/ Jonathan RoddenJonathan Rodden, PhD
-
JA 43
I. SUMMARY
I have been engaged by counsel for the Plaintiffs inthe
above-referenced case, who have asked me toexamine the impact of
the allocation of polling locationsin the 2016 presidential
preference election (“PPE”) inMaricopa County. I have also been
asked to evaluateArizona’s policy of not counting ballots that are
cast ina precinct other than the one to which the voter wasassigned
(“out-of-precinct provisional ballots” or“out-of-precinct voting”),
and to assemble informationabout the race, age, place of residence,
andpartisanship of those whose ballots are not counted dueto
out-of-precinct voting. Finally, I have been asked toexamine
possible explanations for Arizona’s unusuallyhigh rates of
uncounted provisional ballots in recentelections, paying special
attention to changes in pollinglocations and other aspects of
election administration,and to explore implications of recent
confusion aboutpolling locations in the 2016 PPE for future
generalelections.
In this report, I demonstrate that Arizona is theleader among
U.S. states in uncounted provisionalballots because of problems
with electionadministration related to the locations of precincts
andpolling locations and the rules for counting ballots.Voters must
invest significant effort in order tonegotiate a dizzying array of
precinct and polling placeschemes that change from one month to the
next.Further, Arizona’s population is highly mobile andresidential
locations are fluid, especially for minorities,young people, and
poor voters, which furthercontributes to confusion around voting
locations. By
-
JA 44
frequently moving and consolidating polling locationsand
sometimes shifting to temporary “vote centers,”Arizona’s election
administration, especially inMaricopa County, has imposed
significant costs onthose desiring to participate on Election Day.
Specificfindings can be summarized as follows:
- 22 percent of voters visiting a polling place inArizona in the
2012 general election were askedto cast a provisional ballot, and
over 33,000 ofthese—more than 5 percent of all in-personballots
cast—were rejected. The provisionalvoting rate was 18 percent in
2014. No otherstate rejects a larger share of its
in-personballots.
- Arizona rejected 11,000 ballots that it classifiedas
out-of-precinct in 2012, and 3,500 in 2014. Noother state comes
close to this rate of rejectedout-of-precinct ballots.
- Rejected out-of-precinct provisional ballots aremost prevalent
in the relatively urban counties,especially Maricopa and Pima.
- In Maricopa County, many of the ballots thatwere classified by
the election administration as“out-of-precinct” were cast by voters
who wereregistered in and had official addresses in theprecinct
where they tried to vote. These voterswere evidently falsely
disenfranchised. In 2008,the number of such voters was 2,309, and
in2012 it was 2,645. As a share of in-person voters,the numbers are
similar in the mid-term yearsof 2010 and 2014.
-
JA 45
- The rate at which in-person ballots arediscarded under these
circumstances (i.e.,“misclassified out of precinct”) is 80
percenthigher for Hispanics, 34 percent higher forAfrican
Americans, and 26 percent higher forNative Americans than for
whites.
- However, if we focus only on the “true”out-of-precinct votes
(i.e., those instances wherevoters were not falsely
disenfranchised), the rateis 131 percent higher for Hispanics, 74
percenthigher for African Americans, and 39 percenthigher for
Native Americans than whites.
- Out-of-precinct votes are substantially morelikely to be cast
by young people. They are alsomore likely to be cast by people who
live inneighborhoods characterized by large numbersof renters and
individuals who frequentlychange addresses.
- The rate of out-of-precinct voting was 65 percenthigher for
Democrats than Republicans inMaricopa County, and 56 percent higher
in PimaCounty.
- Most out-of-precinct votes in Maricopa Countyare cast very
close to the assigned polling place.One quarter of out-of-precinct
voters cast ballotsin polling places that are actually closer to
theirhome than their assigned polling place.
- Many polling places are located directly onprecinct
boundaries, and multiple polling placesare often clustered
together, sometimes even inthe same building. Voters living further
from
-
JA 46
their polling place, and voters living in closeproximity to
multiple polling places, are morelikely to cast invalid
ballots.
- Hispanics and Native Americans are more likelyto live further
from their assigned polling places,and Hispanics are more likely to
live inproximity to multiple proximate polling places towhich they
are not assigned.
- Residents of Phoenix are more likely to castout-of-precinct
ballots than residents of othercities in Maricopa County.
- Changes in polling place locations are associatedwith higher
rates of out-of-precinct voting.African Americans and Hispanics
aresubstantially more affected by this than whites.In particular,
the impact of precinctconsolidation, while statistically
significant forall groups, is more than twice as large forHispanics
and African Americans as fornon-Hispanic whites.
- The number and locations of polling places inthe 2016
presidential preference election createda large “shock” to the cost
of voting for everyonein Maricopa County, but the costs were
largerfor African Americans and Hispanics.
All of these facts indicate that the recent difficultieswith the
temporary move to voting centers in MaricopaCounty during the 2016
PPE and May 17 SpecialElection will only reinforce and likely
magnify thepersistent misunderstandings that lead to unusuallyhigh
rates of uncounted in-person votes in Maricopa
-
JA 47
County specifically and Arizona generally. Further, thesudden
move from 724 assigned polling places to 60“vote centers” is in
keeping with the broader historicaltrends in Arizona election
administration: it imposessignificant costs on voters, and as with
the otheraspects of election administration covered in the
report,these costs fall disproportionately on minorities.
II. QUALIFICATIONS
I am currently a tenured Professor of PoliticalScience at
Stanford University and the founder anddirector of the Stanford
Spatial Social Science Lab—acenter for research and teaching with a
focus on theanalysis of geo-spatial data in the social
sciences.Students and faculty members affiliated with the Labare
engaged in a variety of research projects involvinglarge,
fine-grained geo-spatial data sets includingindividual records of
registered voters, Census data,survey responses, and election
results at the level ofpolling places. Prior to my employment at
Stanford, Iwas the Ford Professor of Political Science at
theMassachusetts Institute of Technology. I received myPh.D. from
Yale University and my B.A. from theUniversity of Michigan, Ann
Arbor, both in politicalscience. A copy of my current C.V. is
included asAppendix B.
In my current academic work, I conduct research onthe
relationship between the geographic location ofdemographic and
partisan groups, the drawing ofelectoral districts, and patterns of
politicalrepresentation. I have published papers on
politicalgeography and representation in a variety of
academicjournals including Proceedings of the National Academy
-
JA 48
of Science, American Economic Review Papers andProceedings, the
Journal of Economic Perspectives, theVirginia Law Review, the
American Journal of PoliticalScience, the British Journal of
Political Science, theAnnual Review of Political Science, and the
Journal ofPolitics. One of these papers was recently selected bythe
American Political Science Association as thewinner of the Michael
Wallerstein Award for the “bestpaper on political economy”
published in the last year.I have recently written a series of
papers, along withmy co-author, Jowei Chen, using
automatedredistricting algorithms to assess partisangerrymandering.
This work has been published in theQuarterly Journal of Political
Science and Election LawJournal, and featured in more popular
publications likethe Wall Street Journal, the New York Times,
andBoston Review. I am currently writing a book on therelationship
between political districts, the residentialgeography of social
groups, and their politicalrepresentation in the United States and
other countriesthat use winner-take-all electoral districts.
I have expertise in the use of large data sets andgeographic
information systems (GIS) to analyzeaspects of political
representation. I have developed anational data set of geo-coded
precinct-level electionresults that has been used extensively in
policy-oriented research related to redistricting
andrepresentation.1 I have worked extensively with Censusdata from
the United States and other countries.
1 The dataset can be downloaded at
http://projects.iq.harvard.edu/eda/home. The data can be visualized
in an interactive webmap, available at
http://atlas.esri.com/Atlas/VoterAtlas.html.
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JA 49
I have been accepted as and testified as an expertwitness in
four recent election law cases. First, I havetestified in two cases
related to redistricting: Romo v.Detzner (2012-CA-000412 in Florida
Circuit Court,Leon County), and League of Women Voters of
Florida,et al. v. Detzner, et al. (2012-CA-002842 in FloridaCircuit
Court, Leon County). More recently, I haveoffered expert testimony
in a case related to Section 2of the Voting Rights Act: Missouri
State Conference ofthe National Association for the Advancement
ofColored People, et al.v. Ferguson-Florissant SchoolDistrict and
St. Louis County Board of ElectionCommissioners (Civ. No. 14-2077)
in the United StatesDistrict Court for the Eastern District of
Missouri.Finally, I testified in Barbara H. Lee, et al. v.
VirginiaState Board of Elections, et al. (Case No. 3:15-CV-357)in
the United States District Court for the EasternDistrict of
Virginia. I am being compensated at the rateof $500/hour for my
work in this case.2
III. PRECINCTS AND THE COSTS OF VOTINGIN ARIZONA
For busy citizens with jobs, communityresponsibilities, and
children and parents to care for,
2 I was assisted in my analyses by Bradley Spahn, who is a
Ph.D.student in the political science department at Stanford, and
byNicholas Eubank, who is a Ph.D. student in the Graduate Schoolof
Business at Stanford. Both were compensated by Plaintiffs’counsel
at a rate of $200/hour and $140/hour, respectively, for theirwork.
I reviewed and approved of all of their work. In my work asa
political scientist, I typically rely upon the work of students
likeMr. Spahn and Mr. Eubank to assist me with the type of
analysespresented in this report in the same manner.
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JA 50
voting in primaries, general elections, and localelections has a
cost. Given the low probability that anyone individual’s vote will
affect the outcome of anelection or the direction of public policy,
rationalindividuals often make the calculation that the subtlecosts
of voting—updating one’s registration aftermoving to a new
apartment, obtaining informationabout the correct polling place,
arrangingtransportation on Election Day—are higher than thebenefits
of voting, even among individuals who aremotivated by an interest
in public policy, the desire tobe seen by themselves or others as
good citizens, or byintrinsic motivations like patriotism, duty,
and civicpride.
This so-called “calculus of voting” has been the focusof
political science research since the classic work ofAnthony Downs.3
A central conclusion is that when thecosts exceed the benefits many
citizens will abstainfrom voting. Like dieting or quitting smoking,
manyvoters report the desire and intention to vote, butactual
turnout falls short of these reported intentions.Political
scientists have discovered that even seeminglysmall changes to the
costs of voting can make asubstantial difference in turnout. A
generation ofresearch on behavioral economics suggests that
verysmall changes in incentives, like the placement ofhealthy foods
in a cafeteria or the choice architecture
3 Anthony Downs, 1957, “An Economic Theory of Political Actionin
a Democracy,” Journal of Political Economy 65(2): 135-150. Seealso
William Riker and Peter Ordeshook, 1968, “A Theory of theCalculus
of Voting,” American Political Science Review 62(1):25-42.
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JA 51
for retirement plans, can have surprisingly large effectson
behavior.4 Likewise, political science research showsthat very
consequential changes in the cost of votingare often induced by
seemingly mundane decisions ofelection administrators.5 Above all,
recent research hasdemonstrated that changes in polling
locationsassociated with precinct consolidations have asubstantial
effect on turnout.6 Voting is a habit andcustom, and the more
routinized the process, the lesscostly it is for voters. A sudden
unanticipated change inpolling location introduces a shock to the
cost of voting,especially for voters with lower levels of
information.7These costs include not only the travel cost of
getting tothe polling place, but more importantly, the
“searchcosts” associated with obtaining information about thenew
polling place and locating it.8
4 See, for instance, Richard Thaler and Cass Sunstein,
2008,Nudge: Improving Decisions about Health, Wealth, and
Happiness.Yale University Press.
5 See, for instance, Barry Burden and Jacob Neiheisel,
2013,“Election Administration and the Pure Effect of Registration
onTurnout,” Political Research Quarterly 66(1): 77-90.
6 John McNulty, Conor Dowling, and Margaret Ariotti,
2009,“Driving Saints to Sin: How Increasing the Difficulty of
VotingDissuades Even the Most Motivated Voters,” Political
Analysis17(4): 435-455; Henry Brady and John McNulty, 2011,
“Turningout to Vote: The Costs of Finding and Getting to a Polling
Place,”American Political Science Review 105(1): 115-134. 7 Brady
and McNulty (2011), op cit.
8 Brady and McNulty (2011), op cit., McNulty, Dowling, and
Ariotti(2009) op cit.
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Another important lesson from the academicliterature is that the
benefits of voting are not uniformacross individuals in a
community. For some people, animportant part of the benefit of
voting is experiential:some voters derive meaning from the
experience ofcommunity membership and participation in civic
lifeassociated with in-person voting on Election Day. Thussome
Arizona voters choose not to register for thePermanent Early Voting
list, and a large number ofthose receiving ballots in the mail
choose not to mailthem and instead show up at the polling place
onElection Day to cast their vote.
Likewise the costs of voting also vary a great dealacross
individuals. Above all, the cost of voting in theUnited States can
be substantially higher forlow-income and young renters who
frequently movefrom one apartment to another, requiring
frequentinteraction with election administrators to update
theirregistration. An unanticipated change in polling placeor
unanticipated long lines on Election Day could havean especially
large impact on the working poor, whotypically have very little
flexibility in their work day,and must vote during a narrow window
in the morningor evening. In metropolitan areas like Maricopa
andPima Counties, census data reveals that minorities arefar more
likely than whites to find themselves in thiscategory.
The United States is one of the most politically andfiscally
decentralized countries in the world, whichadds considerable
complexity to the task of electionadministration that often
translates into higher costsfor voters. Because lower-level
governments administer
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JA 53
federal elections, and county-level administrators—especially in
urbanized areas—must contend with anarray of overlapping city
council districts, waterdistricts, justice of the peace districts,
school districts,state legislative districts, and Congressional
districts,precincts must be created, and ballots printed, so
thatthe residential address of every voter is connected tothe right
bouquet of local elected offices. This has led tothe creation of
precincts or voting tabulationdistricts—small, geographically
compact groups ofhouseholds with the same bouquet of
localjurisdictions—and these are often associated with asingle
polling location.
Arizona law further complicates this process bypermitting each
county to choose, in each election,whether to run the election in
their district under a“vote center” model, where every voter in the
countycan vote at any polling location in the county in whichthey
reside, or a precinct-based model, under whicheach voter is
assigned to a particular precinct. Somecounties, like Maricopa,
switch back and forth betweena vote center model and a
precinct-based model fromone election to another throughout the
year. Forelections in which a precinct-based system is used,
theArizona Secretary of State’s Office has interpretedArizona law
to require the rejection of the entirety ofany ballots cast in a
precinct other than the one towhich the voter was assigned, even if
a “vote center”model was in effect only a few months earlier.
Suchballots are often referred to as “out-of-precinct” ballotsand,
as discussed further in this report, a substantialnumber of
otherwise eligible Arizona voters are
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disenfranchised in each election as a result of thispolicy.
The policy of rejecting out-of-precinct provisionalballots
wholesale generates a cost for voters—one thatfalls
disproportionately on those who are more likely tobe renters with
frequent address changes: in particularHispanic voters,
African-American voters, and youngvoters. An individual who faces a
rent increase in oneapartment complex and moves to another less
than amile away might not be aware that she has moved intoan
entirely new precinct--indeed, in many cases (asdiscussed further
in this report) she may still liveclosest to her old precinct, but
may now be required totravel further in order to vote in her new
assignedprecinct. Among groups for whom residential mobilityis
common, requirements of in-precinct-voting—as wellas the
requirement that they update their registrationwith the state every
time that they move even a shortdistance within a county—can make
it substantiallymore burdensome to participate in elections. Not
onlymust movers take the time to negotiate the procedurefor
changing their registration address, they mustconstantly reeducate
themselves about whether a votecenter or precinct-based system will
be used for theelection at hand, and in the event of the latter,
theshifting location of the correct polling place.
This class of issues is especially important inArizona. The
2006-2010 American Community Surveyincludes data on the length of
time individuals havelived in the home or apartment in which they
residedduring the data collection period. According to thesedata,
almost 70 percent of Arizonans have changed
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their residential address in the decade from 2000 to2010.9 On
this indicator of residential instability,Arizona is second only to
Nevada. The same survey alsoasks respondents to report whether they
have moved inthe last year: 21 percent of Arizonans reported
doingso. On this metric the only states edging out Arizonawere
North Dakota, Alaska, and Nevada.
The vast majority of those in Arizona who reportedmoving in the
last year were actually moving withintheir current city of
residence. On this metric—within-city moves in the last
year—Arizona is again secondonly to Nevada. And the vast majority
of thesewithin-city moves took place in Maricopa and
Pimacounties.10
In addition to the movement of voters acrossprecinct boundaries,
a further difficulty withprecinct-based voting is the movement of
polling placesfrom one election to another. This can lead to
highervoting costs, and hence lower turnout, not only forthose with
unstable residential histories, but even forengaged, habitual
voters residing for a long period oftime at one address.11
Polling places in some of Arizona’s most populouscounties change
with great frequency. For instance,Maricopa instituted a major
precinct consolidation
9 American Community Survey, 2006-2010 Five-Year
Estimates.Accessed via the National Historical GIS (nhgis.org).
10 ACS 2006-2010 Five-Year Estimates, op cit.
11 McNulty, Dowling, and Ariotti (2009), op cit.
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right before the 2012 general election. There were 1143polling
places for the general mid-term election inNovember 2010, 211 for
presidential preferenceprimary in February of 2012, and then 724
later thatyear for the general presidential election.12
Moreover, for the general elections of 2008, 2012,and 2016 in
Maricopa County, a completely differentprecinct system was used for
the presidentialpreference primary than for the general election.
Inorder to save money, as authorized by state law, theMaricopa
County election administration used fewerpolling places in
presidential preference primariesoccurring in the spring than in
the general electionoccurring a few months later. The reasoning for
thesmaller number seems to be driven by the increasingnumber of
Arizonans making use of early voting, theobservation that turnout
is sometimes sparse innon-competitive years like 2012, and above
all, the factthat the number of voters eligible to vote in
theprimary is much smaller than the number eligible tovote in the
general election because many registeredvoters have not designated
a party affiliation.
This money-saving practice imposes considerablecosts on voters,
however. In 2008 and 2012, mostin-person voters in Maricopa County
were required toobtain information about a different assigned
pollingplace than the one they may have used in other
recentelections. In 2008, the usual 1142 polling places were
12
http://recorder.maricopa.gov/pollingplace/pastpollingplacedetail.aspx
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consolidated to 403, and in 2012, the number wasreduced all the
way 211.13
These efforts at reducing election administrationcosts
unfortunately imposed new search and travelcosts on voters that
wished to participate in theprimary. These temporary precinct
consolidations alsogenerated confusion about the correct polling
place inNovember, thereby suppressing turnout andcontributing to
the problem of out-of-precinctprovisional ballots. In particular,
there was a spike inthe number of out-of-precinct provisional
ballots cast in2012, which corresponds to the major change
inprecincts discussed above as well as the substantialchange in
polling locations between the 2012 PPE and2012 general election. Of
course there is no reason whyvotes in statewide, countywide, or
presidential contestsmust be cast in a specific precinct in order
to becounted. The only reason for rejecting out-of-precinctballots
is the presence of local districted contests thatare printed on the
same ballot. Recognizing this,Maricopa County followed the lead of
counties likeYuma and Yavapai Counties and did away with
therequirement of in-precinct voting in the March2016PPE, and
instead set up 60 “vote centers” at whichany registered party
affiliate could vote regardless ofresidential location. This vote
center model assuaged,at least for one day, Maricopa’s persistent
problem ofout-of-precinct provisional ballots. However, due tosome
serious miscalculations about voter turnout, asdetailed below, it
clearly increased the costs of voting
13
http://recorder.maricopa.gov/pollingplace/pastpollingplacedetail.aspx
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for many residents of Maricopa County, many of whomhad to wait
in unconscionably long lines in order to casttheir ballots.
Moreover, since vote centers will not beused in November 2016 and
many future generalelections, this high-profile incident
introducedconsiderable additional confusion into the already-muddy
topic of where in-person voters should go onElection Day.
The 2016 PPE also aptly illustrates why the issue ofvoter
confusion is further complicated in Arizona. Asnoted above,
localities may switch between vote centerand precinct-based
elections from election to election,sometimes (as with Maricopa
County in 2016) evenwithin the same year.14 In such jurisdictions,
voters arefaced with added difficulties in accurately
identifyingtheir appropriate polling place. Not only are
differentlocations usually used for vote centers as opposed
toprecincts, the voter must become educated about thetype of
election that is being administered in eachseparate elections
cycle, and learn that while under avote center based model she can
vote anywhere in thecounty, in a precinct-based model, she must
identifyand cast her ballot at only one location.
Localities like Maricopa County, which houses thecity of
Phoenix, add an even more confusingcomplication--there, Phoenix
City elections are heldunder vote center models at entirely
different locationsthan the Maricopa Elections. And, in the 2016
generalelection, both Maricopa County and the City of Phoenixwill
be holding some elections at different locations
14 A.R.S. § 16:411.
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within Maricopa County on the same day. Additionalconfusion
results in Maricopa as well because on May17, 2016—only two months
after the disastrous votecenter interlude—Maricopa used another
completelydifferent system of precincts and polling placesfeaturing
122 assigned polling places rather than the724 that it plans to use
in August and November 2016.
Throughout the year, Arizona’s voters are receivingan array of
sample ballots and new instructions aboutpolling locations for a
variety of local, state, specialdistrict, and federal elections. In
Maricopa County, newinformation arrives for elections held in (at
least)March, May, August, and November. The informationoften
arrives only weeks before Election Day. It is notsurprising that
busy and information-constrainedvoters, for whom politics and
elections are not centralactivities in life, might be unable to
make the necessaryinvestment to wade through it all, choosing to
abstain,or trying and failing to vote at the correct polling
place.
One way around this problem in Arizona might beto sign up for
the permanent early voting list.15 As
15 Because voting by absentee entails its own costs, it is not
always aperfect alternative or substitute for voters who are unable
to cast theirvote in person. In particular, there are significant
information costsassociated with absentee voting and, often,
require voters to alsonavigate a sometimes-confusing web of
deadlines. Further, in Arizona,a ballot must arrive at the
Recorder’s office by the close of the election.Thus, voters waiting
until later in the election cycle to make theirvoting
determinations may have no choice but to cast their vote inperson.
Additionally, it is my understanding that a number of votersin
Arizona may not have outgoing mail options which furthercomplicates
the early voting process. See discussion in text
regardingadditional problems with early voting.
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Table 1 shows, a growing number of registered votersare doing
so. Since 2012, absentee ballots were sent toa little over half of
registered voters in Arizona.However, as the number of ballots
mailed out has beenincreasing, the share of those ballots actually
returnedhas been steeply decreasing. Comparing
presidentialelections, the share of ballots returned has fallen
from94 percent in 2008 to 80 percent in 2012. For mid-termelections
the rate at which absentee ballots arereturned has fallen from 77
percent in 2010 to 58percent in 2014.
While many of those who do not submit their ballotare making a
choice to abstain, a large number are alsoshowing up to the polling
place on Election Day, wherethey are asked to submit provisional
ballots.16 Itappears that some voters view the early ballot as
anabsentee option to be used in the event that they willnot be able
to make it to a polling place on ElectionDay. It may also be the
case that some voters havegrown mistrustful of the early voting
process, giventhat the ballot can be rejected for reasons like
improperor non-matching signature. The data in Table 1indicate that
the rate at which submitted absenteeballots are rejected has been
growing over time,reaching almost 1 percent by 2014. Some voters
alsoworry about whether their mail-in ballot will actuallybe
counted, especially those mailed as Election Day
16 For instance, the vote history indicators in an early
2013Maricopa voter file that was produced by the Democratic
NationalCommittee, indicate that of those who showed up in person
to votein the 2012 presidential election, almost one quarter were
on thepermanent early voting list.
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approaches, since media reports have indicated thatsuch ballots
are the last to be counted.
Table 1: Absentee Voting in Arizona
Year 2008 2010 2012 2014
Registeredvoters
3,441,141
3,502,743
3,725,362
3,802,786
Ballotssent out
1,308,030
1,410,083
1,920,746
2,060,603
Ballotssubmitted
1,223,936
1,084,665
1,542,855
1,193,537
Ballotscounted
1,217,109
1,076,402
1,530,465
1,182,149
Ballotsrejected
6,827 8,263 12,390 10,388
Missed deadline
1,611 2,944 4,107 3,312
No voter signature
3,041 3,692 5,256 4,268
Non- matching signature
1,645 1,125 2,051 1,563
Ballot returned in unofficial envelope
1 2 72 286
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Ballot missing from envelope
171 52 173 56
No resident address on envelope
0 0 122 0
IV. TURNOUT AND OUT-OF-PRECINCTVOTING IN ARIZONA
In sum, much of Arizona has an extremely mobilepopulation
characterized by a high degree of residentialchurn, and its
election administrators frequently alterthe location of polling
places while (usually) insistingthat in-person votes can only be
counted if voterssuccessfully cast their votes in the right place.
Giventhe costs imposed by this confluence of factors, alongwith
other shortcomings of election administration inArizona, it would
not be surprising to see that Arizonahas unusually low rates of
registration and turnoutamong its citizens and high rates of
invalidout-of-precinct provisional ballots among thoseregistered
voters who attempt to cast in-person votes.Moreover, it would not
be surprising to see that theseproblems are especially pronounced
among minoritygroups that are more likely to be among the
workingpoor and more likely to have unstable residential
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histories.17 To examine these possibilities, let us nowturn to
data on turnout and provisional ballots.
First, I demonstrate that Arizona’s turnout isindeed quite low
relative to other states, especiallyamong minorities. Second, I
demonstrate that Arizona’sproblem with uncounted provisional
ballots is far worsethan other states. Third, I conduct an in-depth
casestudy of out-of-precinct voting in Maricopa County,where I have
been given access to rich individual-leveldata, showing that
out-of-precinct provisional ballotsare cast far more frequently by
minorities, youngpeople, and Democrats than would be expected
giventheir share of voters. Finally, I extend this analysis totwo
additional counties to provide an overall indicationof the
implications of this practice in the rest of thestate: Pima and
Coconino.
Arizona’s Turnout in Comparative Perspective
If the costs of voting are especially high due todistinctive
features of election administration inArizona, we might expect to
see that Arizona hasunusually low rates of registration and
turnout, andunusually high rates of rejected ballots. Indeed this
isthe case. As part of its Current Population Survey, theUnited
States Census Bureau collects data onself-reported registration and
voting after each general
17 According to the most recent five-year American
CommunitySurvey, the poverty rate for African Americans is more
than twicethat of whites, and for Native Americans it is more than
threetimes higher. Rates of home ownership are more than twice
ashigh for whites as blacks, and around 1.5 times higher for
whitesthan for Hispanics and Native Americans.
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election, publishing estimates of registration andturnout by
race and ethnicity in each state. These dataindicate that Arizona
is one of the least successfulstates in registering its voters and
eliciting votes ingeneral elections.
Figure 1 draws upon the November 2012 CurrentPopulation Survey
and presents turnout in the 2012general election as a share of
citizen voting-agepopulation.18 It demonstrates that Arizona was
rankednear the bottom of all states (44th) in overall turnout.
The problem of low registration and electoralparticipation is
especially pronounced among Arizona’sracial and ethnic minorities.
Figure 2 displaysestimates of turnout among African Americans,
andFigure 3 does so for Hispanics. Estimates areunavailable in
states with very small minoritypopulations, and in each graph,
observations arelimited to states where the group makes up at least
twopercent of the citizen voting-age population.
18 I have chosen to present cross-state data from the most
recentpresidential election since it featured the same hotly
contestedpresidential race in all states. Turnout in mid-term
elections isdifficult to compare across states since some states
featureimportant gubernatorial and senatorial races that induce
higherturnout, while other states do not. In fact, due to the
advantagesof incumbency and the lopsided nature of partisan
competition insome regions, mid-term general elections in some
states featurealmost no competitive contests.
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Figure 1: Turnout as share of total citizenvoting-age
population, 2012 general election,
according to Current Population SurveyNovember 2012
Figure 2 (below) reveals the striking fact thatturnout among
African Americans in Arizona was only46 percent during a hotly
contested presidentialelection where the same measure of
African-Americanturnout was over 66 percent nationwide. Only
Alaskahad a worse showing among its (very small) AfricanAmerican
population.
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Figure 2: African-American turnout as share oftotal
African-American citizen voting-age
population, 2012 general election, according toCurrent
Population Survey November 2012
Figure 3 (below) reveals that Arizona is also amongthe laggards
in turnout among citizen voting-ageHispanics. Its turnout rate of
39 percent is in thebottom third of all states. In contrast, the
non-Hispanicwhite turnout rate in Arizona was 62 percent.
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Figure 3: Hispanic turnout as share of totalHispanic citizen
voting-age population, 2012
general election, according to CurrentPopulation Survey November
2012
Out-of-Precinct Voting: Arizona in ComparativePerspective
Before taking a closer look at the relationshipbetween the
unusual features of electionadministration in Arizona and the
problem ofout-of-precinct voting, it is useful to see the big
pictureof how Arizona compares with other states. Arizona isnot
only among the states with the lowest levels ofelectoral
participation, but among those who do
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attempt to cast ballots, Arizona has the dubiousdistinction of
being the national leader in rejectingthose ballots as invalid. As
with registration andturnout, this aspect of election
administration has adisproportionate impact on minorities. Since
Arizona’sproblems are not new, and they are not “normal”
whencompared with other states, we must search foranswers in
Arizona’s practices of electionadministration or characteristics of
its population.
Perhaps the greatest change to the voting process inthe United
States, ushered in by the Help AmericaVote Act of 2002, was the
mandate to offer provisionalballots at all polling places for
instances when theeligibility of a voter is in question. While this
is aninvaluable failsafe to protect the franchise in light
ofinevitable bureaucratic snafus or other misfortunes, ithas had
some unintended consequences. Primarily, ina well-meaning effort to
be conscientious, poll workersoften ask voters to fill out
provisional ballots given anyquestion at all about eligibility.
This increases theburden on the voter who has to endure the
morelengthy process of casting a provisional ballot that mayor may
not be counted, as well as other voters at thepolling place who are
subjected to longer wait times inline.19
This issue has become especially difficult inArizona, which has
become one of the nation’s leaders
19 See, e.g., Maricopa County Elections Dep’t, Provisional
BallotsGeneral 2012 Presentation (Jan. 30, 2013) at 185 (noting
costs ofprovisional balloting in terms of longer lines and losses
in voterconfidence).
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in provisional voting. Figure 4 is drawn from datapresented in
the 2012 Election and VotingAdministration Survey, published by the
United StatesElection Assistance Commission (EAC) based on
datacollected from a survey of state election administrators.It
demonstrates that as a share of all ballots cast in the2012 general
election, Arizona was second only toCalifornia in the use of
provisional ballots.
Figure 4: Provisional ballots as a share ofballots cast in the
2012 general election
according to AEC report
Since a large share of Arizona voters cast their ballotsearly by
mail, Figure 4 under-estimates the prevalenceof provisional ballots
cast on Election Day in Arizona.
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Drawing on reports published for each general electionby the
EAC, Figure 5 displays provisional ballots as ashare of all
in-person ballots cast for each generalelection in Arizona since
2006. It shows thatprovisional ballots were in the range of 9 to 13
percentof all in-person ballots cast from 2006 to 2010, and
thenexploded in the 2012 general election, comprising over22
percent of all in-person ballots cast. More than onein every five
voters visiting a polling place in Arizonain 2012 was asked to cast
a provisional ballot, and over33,000 of these—more than 5 percent
of all in-personballots cast—were rejected. No other state rejected
alarger share of its in-person ballots in 2012.
Figure 5: Provisional ballots as share of in-person ballots cast
in
Arizona According to EAC reports
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Figure 5 also shows that in spite of much lowerturnout, the
problem did not go away in the 2014mid-term election. On the
contrary, the rate ofprovisional balloting was over 18
percent—easily thehighest among the 50 states. Since 2012, Arizona
hasclearly become the national leader in both provisionalballots
cast and especially in provisional ballotsrejected among in-person
voters
Many of the other states with relatively largenumbers of
provisional ballots are Western states that,like Arizona, have come
to rely increasingly on votingby mail. This is because individuals
who receive mail-inballots often show up at the polling
place—whetherbecause they miss the mail-in deadline, misplace
theballot, or prefer to vote in person—and electionadministrators
use the provisional ballot process tomake sure that those voters do
not vote twice. But, asin other states, such provisional votes are
generallyeventually counted. Accordingly, the fact that so
manyArizonans are on the vote by mail list cannot explainArizona’s
unusually high number of rejected ballots.
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Figure 6: Rejected out-of-precinct ballots as ashare of
in-person ballots cast according to
2012 EAC Report
What sets Arizona apart from other states is itspersistent
problem with out-of-precinct voting. Figure6 displays
out-of-precinct ballots as a share of all in-person ballots cast in
the 2012 general election.Arizona is clearly in a class by itself,
with almost11,000 rejected out-of-precinct provisional ballots
in2012 and 3,500 in 2014. No other state comes close.This indicates
that something is clearly going wrong inthe process through which
election administrators:assign voters to polling places in
precincts, inform themabout often-shifting locations in the weeks
before theelection, inform those voters who arrive at t the
wrong
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polling place about their correct polling location, andthen
discard provisional ballots after the election. It issimply not
plausible that 11,000 Arizonans stood inline to vote in 2012 and
went to the trouble of castinga provisional ballot that they knew
would not becounted.
Figure 7: Provisional ballots as a share of in-person ballots
cast according to EAC reports,Arizona counties
The EAC also collects data from Secretaries of Stateon
individual counties. Figure 7 zooms in on Arizona’s15 counties,
displaying provisional ballots as a share ofall in-person ballots
in each general election from 2008to the present. It demonstrates
that provisional ballotsare especially common in Arizona’s three
most
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populous counties, including Maricopa—where theyaccounted for
around one in three in-person ballots castin 2012—as well as Pima
and Pinal. Among the lesspopulous counties, provisional ballots as
a share ofelection-day voting are relatively common in
Coconino,Yuma, and Gila.
Figure 8: Total rejected ballots and out-of-precinct ballots as
shares of in-person ballots
cast according to EAC reports, Arizonacounties
Figure 8 turns attention to only those provisionalballots that
were rejected, as well as the sub-set ofballots rejected because of
out-of-precinct voting. Thedashed line shows that rejected ballots
have been most
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common in Maricopa County, as well as the lessurbanized counties
of Apache, Coconino, Gila, andNavajo. Following the general
pattern, Pima and Pinalhave relatively high rates of ballot
rejection duringpresidential years, and lower but
neverthelesssubstantial rates (around two percent) during
mid-termelections.
Figure 8 also shows that out-of-precinct voting hasbeen most
pronounced in the urbanized counties ofPima and above all Maricopa,
where almost twopercent of all ballots are routinely invalidated
due tovoters casting ballots at the wrong location. In thosetwo
counties alone, almost 10,000 votes were thrownaway for this reason
in the 2012 general election.Coconino has also experienced a
problem without-of-precinct ballots, especially in
presidentialelection years.
Who Votes in the Wrong Precinct? A Case Studyof Maricopa
County
Since around three quarters of Arizona’s out-of-precinct votes
are cast in Maricopa County, it is thenatural place to look for a
deeper understanding of thephenomenon of out-of-precinct voting. I
have receiveda list of the name and address of every voter
inMaricopa County who cast a provisional ballot in thegeneral
elections of 2008, 2010, 2012, and 2014,including a code that
specifies the reason the voter wasasked to cast a provisional
ballot, as well as anindicator for whether the ballot was
ultimatelycounted. The data also include codes for the
precinctwhere the provisional ballot was cast, as well as the
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precinct assigned by election administrators to thevoter’s
registration address.
My analysis begins by simply mapping the rejectedout-of-precinct
provisional ballots. Figure 9 uses thehousehold addresses of the
7500 individuals who castinvalid out-of-precinct ballots in the
November 2012general election to produce a heat map that gets
darkerin neighborhoods where there are clusters of out-of-precinct
votes.20 Although the greater Phoenixmetropolitan area has a
strikingly even populationdistribution compared with most U.S.
cities, Figure 9reveals notable concentrations of invalid
out-of-precinctballots, including a residential area just North of
thePhoenix Sky Harbor Airport, a relatively low-densityresidential
area just to the Southwest of the airport,downtown Tempe, the I-17
corridor, and the suburb ofGoodyear, and parts of Glendale, among
others.
20 These addresses were geo-coded by a geo-coding service
calledgeocod.io. I have selected this service because it is able to
processlarge numbers of addresses quickly and efficiently. It is a
regularpractice in my profession to use such services to geo-code.
I haveused this service before and am familiar with and confident
intheir work. I have taken sample data sets in which the
truecoordinates are known, and contrasted the accuracy of
theirestimates with those produced by other leading
geo-codingservices. The differences in accuracy were minimal.
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Figure 9: Heat map derived from geocodedindividual
out-of-precinct ballots cast in 2012
general election
It is possible to get a sense for the correlates
ofout-of-precinct v