Diane J. Humetewa

“ The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. ”

“ Absent from the Complaint is an allegation that Plaintiffs (or any registered Arizona voter for that matter) were deprived of their right to vote. Instead, they bring baseless claims of “disparate treatment of Arizona voters, in subjecting one class of voters to greater burdens or scrutiny than another.” (Doc. 1 ¶ 115) . They do not allege what “class” of voters were treated disparately. Nor do the Elector Plaintiffs cite to any authority that they, as “elector delegates,” are a class of protected voters. ”

“ If granted, millions of Arizonans who exercised their individual right to vote in the 2020 General Election would be utterly disenfranchised. Such a request should then be accompanied by clear and conclusive facts to support the alleged “egregious range of conduct in Maricopa County and other Arizona counties... at the direction of Arizona state election officials.” (Id.) Yet the Complaint’s allegations are sorely wanting of relevant or reliable evidence, and Plaintiffs’ invocation of this Court’s limited jurisdiction is severely strained. ”

“ Here, Plaintiffs face a number of difficulties in their attempt to pierce Defendants’ sovereign immunity. Defendants argue that all of Plaintiffs’ allegations are actually state law allegations masked under federal law. Defendants point to numerous instances in Plaintiffs’ Complaint where Arizona state election law is relied on, including their catch-all fraud claims, which are entirely based on state law. The Eleventh Amendment clearly bars such claims. ”

“ Defendants contend that Plaintiffs do not have standing to assert these claims and point out that these allegations are nothing more than generalized grievances that any one of the 3.4 million Arizonans who voted could make if they were so allowed. The Court agrees.
Here, Plaintiffs have not alleged a concrete harm that would allow the Court to find Article III Standing for their vote dilution claim. As courts have routinely explained, vote dilution is a very specific claim that involves votes being weighed differently and cannot be used generally to allege voter fraud. ”

“ Indeed, as numerous other courts have held, where, as here, the injury alleged by plaintiffs is that defendants failed to follow the Elections Clause, the Supreme Court has stated that the “injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that [courts] have refused to countenance.” ”

“ Because the Complaint is grounded in these fraud allegations, the Complaint shall be dismissed. Vess, 317 F.3d at 1107 (“When an entire complaint, or an entire claim within a complaint, is grounded in fraud and its allegations fail to satisfy the heightened pleadings requirements of Rule 9 (b) , a district court may dismiss the complaint or claim.”) .
Plaintiffs first “describe specific violations of Arizona law” to support their fraud claims. [16] In doing so, they attach declarations from poll watchers that observed election officials during the November General Election. ”

“ Our conclusion departs from the recent decision of an Eighth Circuit panel which, over a dissent, concluded that candidates for the position of presidential elector had standing under Bond [v. United States, 564 U.S. 211 (2011) ] to challenge a Minnesota state-court consent decree that effectively extended the receipt deadline for mailed ballots.... The Carson court appears to have cited language from Bond without considering the context—specifically, the Tenth Amendment and the reserved police powers—in which the U.S. Supreme Court employed that language. ”

“ Plaintiffs’ counsel orally argued that Defendants had the power to de-certify the election under 3 U.S.C. § 6. Nothing in that statute authorizes this Court to de-certify the results. The manner provided to contest elections under Arizona law requires election contest claims to be brought, “in the superior court of the county in which the person contesting resides or in the superior court of Maricopa County.” A.R.S. § 16-672. Therefore, if de-certification were possible, it would only be possible through an action brought in Arizona superior court. ”

“ Advancing several different theories, Plaintiffs allege that Arizona’s Secretary of State and Governor conspired with various domestic and international actors to manipulate Arizona’s 2020 General Election results allowing Joseph Biden to defeat Donald Trump in the presidential race. The allegations they put forth to support their claims of fraud fail in their particularity and plausibility. ”

“ See A.R.S. § 16-212 (C) (“After the secretary of state issues the statewide canvass containing the results of a presidential election, the presidential electors of this state shall cast their electoral college votes for the candidate for president and the candidate for vice president who jointly received the highest number of votes in this state as prescribed in the canvass.”) (emphasis added) . Arizona voters do not show up to vote for any single Electors listed next to the presidential candidates’ names; they vote for their preferred presidential candidate. ”

“ But perhaps more concerning to the Court is that the “expert reports” reach implausible conclusions, often because they are derived from wholly unreliable sources.
Plaintiffs’ expert Mr. William Briggs (“Briggs”) , for example, concludes that “troublesome” errors by Arizona election officials “involving unreturned mail-in ballots [] are indicative of voter fraud” and that the election should consequently be overturned. ”

“ Moreover, “claims of fraud or mistake... must, in addition to pleading with particularity, also plead plausible allegations. That is, the pleading must state enough facts to raise a reasonable expectation that discovery will reveal evidence of the misconduct alleged.” ”

“ Braynard’s “data” cannot plausibly serve as a basis to overturn a presidential election, much less support plausible fraud claims against these Defendants.
The Complaint is equally void of plausible allegations that Dominion voting machines were actually hacked or compromised in Arizona during the 2020 General Election. Plaintiffs are clearly concerned about the vulnerabilities of voting machines used in some counties across Arizona and in other states. ”

“ Elections and Electors Clause—Count One Plaintiffs allege in Count One that Defendants violated the Elections and Electors Clauses and 28 U.S.C. § 1983 by, among other things, losing or destroying absentee ballots, and/or replacing those ballots with “blank ballots filled out by election workers, Dominion or other third parties” sending thousands of absentee ballots to someone besides the registered voter that “could have been filled out by anyone.” (Doc. 1 at 41) . Defendants argue that Plaintiffs do not have standing to assert such a claim. ”

“ D. Laches Defendants also argue that the doctrine of laches bars Plaintiffs’ claims. Laches will bar a claim when the party asserting it shows the plaintiff unreasonably delayed in filing the action and the delay caused prejudice to the defendant or the administration of justice. Danjaq LLC v. Sony Corp., 263 F.3d 942, 951–52 (9th Cir. 2001) (noting that laches requires a “defendant [] prove both an unreasonable delay by the plaintiff and prejudice to itself”) . Laches can bar untimely claims for relief in election cases, even when the claims are framed as constitutional challenges. ”

“ There is no evidence that the manner in which signatures were reviewed was designed to benefit one candidate or another, or that there was any misconduct, impropriety, or violation of Arizona law with respect to the review of mail-in ballots.” Lastly, Ward alleged errors with duplication of ballots. The state court also allowed Ward to examine a sampling of duplicate ballots and held that ‘ [t] he duplication process prescribed by the Legislature necessarily requires manual action and human judgment, which entail a risk of human error. ”

“ Abstention may be “warranted by considerations of proper constitutional adjudication, regard for federal-state relations, or wise judicial administration.” Id. Colorado River abstention permits a federal court to abstain from exercising jurisdiction over a matter in deference to a state court suit regarding similar claims and allegations. ”

“ XI. Such immunity applies when a citizen brings a claim against their own state. See Hans v. Louisiana, 134 U.S. 1, 19 (1890) . The immunity extends to “suit [s] against state officials when the state is the real, substantial party in interest.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) . “This jurisdictional bar applies regardless of the nature of the relief sought.” Id. “When the suit is brought only against state officials, a question arises as to whether that suit is a suit against the State itself.” ”

“ Their delay and the resulting prejudice bars their claims by laches.
E. Mootness Defendants also argue that this case is moot. (Docs. 38 at 5; 40 at 22) . The Court agrees. “Mootness is a jurisdictional issue, and ‘federal courts have no jurisdiction to hear a case that is moot, that is, where no actual or live controversy exists.’” Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) (quoting Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986, 989 (9th Cir. 1999) ) . In addition, a case is moot when a party cannot obtain relief for its claim. ”

“ Plaintiffs also include documents showing that the facts underlying their allegations of ballot counting and verification misconduct occurred weeks before Election Day. Canvassing in Arizona began in October, and the poll watcher declarations and affidavits attached to the Complaint object to the signature verification and ballot process during this time. ”