Mecinas v. Hobbs

468 F.Supp.3d 1186

Brian MECINAS, et al., Plaintiffs,

v.Katie HOBBS, Defendant.

No. CV-19-05547-PHX-DJH

United States District Court, D. Arizona.

Signed June 25, 2020

Abha Khanna, Perkins Coie LLP, Seattle, WA, Austin Clark Yost, Sarah Rae Gonski, Perkins Coie LLP, Phoenix, AZ, Elisabeth C. Frost, Pro Hac Vice, Jacki Anderson, Pro Hac Vice, John Michael Geise, Pro Hac Vice, Marc E. Elias, Pro Hac Vice, Perkins Coie LLP, Washington, DC, for Plaintiffs.

Dustin Dane Romney, Joseph Eugene LaRue, Kara Karlson, Linley Sarah Wilson, Office of the Attorney General, Emma Jane Cone-Roddy, Kimberly Irene Friday, Mary Ruth OGrady, Osborn Maledon PA, Phoenix, AZ, for Defendant.

ORDER

Diane J. Humetewa, United States District Judge

This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction (Doc. 14) and Defendant's Motion to Dismiss the First Amended Complaint (Doc. 26). Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. (Doc. 13). The Court held oral argument on the Motion to Dismiss and an evidentiary hearing on the Motion for Preliminary Injunction on March 4, 5, and 10, 2020 ("Hearing"), and took both Motions under advisement. (Docs. 49, 52, and 55).

I. Background

This case involves the constitutionality of Arizona's general election ballot ordering statute, A.R.S. § 16-502(E) (the "Ballot Order Statute"). The Ballot Order Statute, enacted in 1979, will be utilized for the twentieth time in the November 2020 general election. The Ballot Order Statute establishes the order in which candidates appear on the ballot in each of Arizona's fifteen counties.¹ Names of candidates are listed according to their political party, "in descending order according to the votes cast for governor for that county in the most recent general election for the office of governor." A.R.S. § 16-502(E). Therefore, candidates of the political party that received the most votes in the most recent gubernatorial election in that county appear first in all races and on all ballots in that county. Id. This has generally led to Republican candidates being listed first in some counties, and Democratic candidates being listed first in other counties in any given general election.² A three-letter political party identification—DEM for Democrat and REP for Republican—is listed next to each candidate's name regardless of the candidate's position on the ballot. A.R.S. § 16-502(C). This identification provides voters with visual cues when searching for their preferred party on the ballot.

A. The Parties

Plaintiffs in this matter include three Arizona voters, Brian Mecinas, Carolyn Vasko, and Patti Serrano (collectively the "Voter Plaintiffs"), and three organizations, the Democratic National Committee ("DNC"), the Democratic Senatorial Campaign Committee ("DSCC"), and PRIORITIES USA ("Priorities"), a political action committee (collectively the "Organizational Plaintiffs"). (Doc. 13). Plaintiffs contend that a "well-documented phenomena" known as "position bias" or "primacy effect" exists in elections of all kinds throughout the country. Plaintiffs define position bias as the "significant electoral advantage" gained by the first-listed candidate "merely from being listed first." (Doc. 14 at 5). They allege that candidates in Arizona who are listed first on the ballot obtain "several percentage points" more than those candidates not listed first. Id. While Plaintiffs acknowledge that the Ballot Order Statute could theoretically equally distribute the number of times a candidate from each party appears first, they argue that this could never happen in Arizona because the population is not equally divided between counties.

The Voter Plaintiffs allege that the Ballot Order Statute injures them, other Arizona voters, and the candidates they support, by diluting their votes and creating an "artificial" advantage to Republicans. (Doc. 13 at 9). They explain that this "dilution" results from their votes needing to "compete with the overwhelming majority of Arizonans who vote in counties where the favored party is the Republican Party." (Doc. 13 at 6). Moreover, they allege that the "weight and impact" of their votes are "consistently decreased by the votes accruing to the first-listed candidates." (Doc. 13 at 18). The Voter Plaintiffs further allege that because they live in Maricopa County, where Republicans will be listed first on the ballot, they will personally suffer irreparable injury due to the burden on their ability to "engage in effective efforts to elect" Democrats. (Doc. 13 at 8). Plaintiff Mecinas specifically alleges that the Ballot Order States impedes his work of supporting and interning for a congressional campaign. (Id. ) Plaintiff Vasko, who was 17 years old when this case was filed, alleges that the impact of her efforts to elect Democratic candidates, including during her mother's 2014 candidacy for the state legislature, have been negatively impacted. (Id. at 9). Plaintiff Serrano alleges that she participates in "advocacy efforts for progressive causes" that are negatively impacted by the Ballot Order Statute. (Id. at 10).

Plaintiff DNC is the national committee of the Democratic Party. It alleges that the Ballot Order Statute frustrates its mission to elect Democratic candidates and to actively support the development of programs that benefit its candidates. (Doc. 13 at 10-11). The DNC alleges that it has "seven members in Arizona and millions of constituents who affiliate with and consider themselves to be members of the Democratic Party." (Doc. 14-6 at 4). The DNC alleges that it has expended extra resources and diverted funding to Arizona in order to combat the effects of the Ballot Order Statute. (Doc. 13 at 10). It further alleges that its members are harmed when Republican candidates are listed first "in the vast majority of Arizona's counties" because its members’ votes are diluted. (Doc. 13 at 10).

Plaintiff DSCC is the national senatorial committee of the Democratic Party with a mission of electing Democrats to the United States Senate. (Doc. 13 at 11). The DSCC alleges that it spent millions of dollars in Arizona in 2018 to "persuade and mobilize voters to support Democratic Senate candidates" and that it "again intends to make substantial contributions and expenditures to support the Democratic candidate for U.S. Senate in Arizona in 2020." (Id. ) The DSCC alleges that the Ballot Order Statute frustrates its mission by giving an arbitrary and artificial electoral advantage to Republicans, including in Arizona Senate races.³ The DSCC states that, "[o]f particular concern to the DSCC is that the Ballot Order Statute will give the Republican candidate a meaningful advantage in what is expected to be a highly competitive race for U.S. Senate, as Republican Senator Martha McSally will be defending the seat to which she was appointed earlier this year." (Doc. 14-5 at 4). It further alleges that the Ballot Order Statute will significantly impact DSCC's resources, "in a severe and irreparable way," by diverting money away from other unspecified states to combat the "arbitrary advantage" Republicans enjoy in Arizona. (Id. )

Plaintiff Priorities is an advocacy organization with a mission to "engage Americans in the progressive movement by running a permanent digital campaign" to mobilize citizens around issues. (Doc. 13 at 11). Priorities spent money in Arizona in the 2018 election to advance this mission. (Id. at 12). Priorities alleges that the Ballot Order Statute frustrates its mission by giving an arbitrary and artificial electoral advantage to Republicans, which causes it to spend more money in Arizona and divert money away from other unspecified states. (Id. )

B. Relief Requested

Plaintiffs request that the Court issue an order (1) declaring that the Ballot Order Statute is unconstitutional pursuant to the First and Fourteenth Amendments, (2) preliminarily and permanently enjoining the Secretary from utilizing the Ballot Order Statute, (3) directing the Secretary to comply with a new scheme they wish the Court to develop, and (4) awarding costs, disbursements and attorneys’ fees incurred in bringing this action. (Doc. 13). Specifically, Plaintiffs request a system by which major party candidates have an equal opportunity to be listed first on the ballot by either requiring the rotation of major party candidates by precinct or county, or by a lottery to determine which candidate will be listed first in each precinct or county.⁴

(Doc. 64 at 24-26). At the hearing, Plaintiffs stressed that they are not requesting that Independent Party candidates or write-in candidates be included in the new rotation scheme. (Id. )

C. Defendant's Position

Defendant argues that the Court must not reach the merits of Plaintiffs’ arguments, as they have not alleged a concrete injury sufficient to satisfy the requirements of Article III standing, that the relief sought is barred by the Eleventh Amendment, and that the claims are non-justiciable political questions. (Doc. 26). Alternatively, Defendant argues that Plaintiffs failed to establish that the primacy effect exists in Arizona, and thus, that their claims fail as a matter of law. The Court must first address Defendant's Motion to Dismiss and the jurisdictional arguments Defendant makes therein. (Doc. 26).

II. Legal Standards

"To ensure that the Federal Judiciary respects the proper—and properly limited—role of the courts in a democratic society, a plaintiff may not invoke federal-court jurisdiction unless he can show a personal stake in the outcome of the controversy." Gill v. Whitford , ––– U.S. ––––, 138 S. Ct. 1916, 1929, 201 L.Ed.2d 313 (2018) (internal citations omitted). Article III provides that federal courts may only exercise judicial power in the context of "cases" and "controversies." U.S. CONST. art. III, § 2, cl. 1 ; Lujan v. Defs. of Wildlife , 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). For there to be a case or controversy, ...