Aguilera v. Fontes

by Margaret R. Mahoney

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-014562	11/29/2020
HONORABLE MARGARET R. MAHONEY	CLERK OF THE COURT K. Ballard Deputy
LAURIE AGUILERA, et al.	ALEXANDER M KOLODIN
v.
ADRIAN FONTES, et al.	THOMAS PURCELL LIDDY
	DANIEL A ARELLANO SARAH R GONSKI COURT ADMIN-CIVIL-ARB DESK DOCKET-CIVIL-CCC JUDGE MAHONEY

 

CASE DISMISSED

"There's nothing perfect in this world, including voting systems."

So testified Plaintiffs' voting systems expert Dr. Sneeringer^[1] during the Hearing^[2] in response to the question "To your knowledge, does a perfect voting system exist?" Dr. Sneeringer's opinion, while seemingly neither controversial nor original as to the lack of perfection in the world, directly contradicts the linchpin of Plaintiffs' Complaint.^[3]

Plaintiffs' Complaint, stating six causes of action, contains a modest 13.5 pages of explanatory text. Within those pages, Plaintiffs assert 13 separate times that Arizona law requires and guarantees to its voters perfection in the voting process in this State, and that Plaintiffs were harmed as a legal matter by being deprived of a perfect process.

Specifically, Plaintiffs claim:

• the ballot casting and tabulating process did not occur with "perfect accuracy";
• the tabulation machines did not "both automatically and perfectly read and record" all ballots and did not count votes "perfectly";
• every tabulator was not a "perfectly accurate machine"; and
• all votes were not "counted via a fully automated and perfect process."

(Complaint at 2:8, 4:28, 6:15, 7:6, 7:21, 7:28, 8:18–19, 8:21, 9:9, 11:23–24, 11:25–26, 12:2, and 12:23–24.)

The Court finds the law cannot provide, nor does it guarantee, perfection.

This Court could not locate the word "perfect," or a derivative thereof, in the Arizona Secretary of State's 2019 Elections Procedures Manual ("EPM") (Hearing Exh.^[4] "23"). Likewise, the Court is not aware of and no party has brought to the Court's attention, any Arizona elections or voting statute containing the word "perfect" or a variation thereof.

The Complaint states that it is brought by "two individuals who experienced difficulties voting on election day." (Complaint ¶ 1.1.)

Plaintiff Aguilera asserts that she was unable to successfully cast her ballot in person at the polls on 11/3/2020, Election Day. (Id. ¶ 1.2.) Aguilera testified^[5] that on Election Day, she and her husband Damian Aguilera went together to vote in person at the Sheraton Hotel at 26^th Avenue and Dunlap in Phoenix. Aguilera's husband testified that he voted without incident just ahead of his wife. Aguilera testified that when she inserted her completed ballot into the tabulator machine, the tabulator screen did not light up or make any noise. Poll workers who came to assist Aguilera thought the tabulator looked as though it was ready to receive another ballot and told Aguilera she needed to vote again. When Aguilera began the process of doing so by scanning in her identification at the check-in kiosk, the kiosk indicated that she had already cast her ballot and gave her the option to cancel the ballot.

Aguilera elected to do so, but before she could proceed further, a poll worker returned and told Aguilera and the other poll worker attending Aguilera: "I just got off the phone. Her ballot's in the box. It will be counted tonight." Consequently, Aguilera was not permitted to cast a second ballot as her first ballot "was in the box" and would be counted later.

Aguilera's husband later checked the Maricopa County Recorder's website for his ballot status which, under the heading "My Ballot Status," showed a message reading "11/3/2020. You voted on Election Day. Your vote was counted." (Exh. "2".) Aguilera checked her ballot status on the website and the section under "My Ballot Status" was blank. (Id.) When asked what date she checked the website and took the screenshot that is Exhibit "2," Aguilera testified "I don't remember the date. A couple of weeks maybe. A week—I don't know. A couple of weeks ago." She had not checked the website on the day of the Hearing.

Aguilera is concerned that perhaps her ballot in fact was not processed and counted, contrary to what the poll workers told her would happen. Further, Aguilera also testified that even if her ballot was in fact counted, but was counted by a human being rather than a machine, she would not be satisfied because she has "no way of verifying that."

Plaintiff Drobina described a different scenario. Drobina acknowledges that he cast his ballot in person at the polls on Election Day at Arrowhead Town Center in Glendale, but the "tabulation machine ['tabulator'] was unable to automatically read and tabulate his ballot with perfect accuracy as the law required." (Id. ¶ 1.3.) The tabulator did not automatically accept Drobina's completed ballot the first two times he inserted it into the tabulator and therefore, he deposited his completed ballot into Tray 3 of the tabulator. Ballots from Tray 3^[6] are processed later and if further attempts at a tabulator reading a ballot are unsuccessful, then a human being manually reviews the ballot to determine voter intent and count the ballot ("Adjudication"). Drobina objects to a human review of his ballot as inferior to a machine review.

Drobina acknowledges that he did in fact receive confirmation on the County Recorder's website that his ballot had been counted. (Exh. "3".)

The evidence established that any number of issues may cause a tabulator to not be able to read a ballot, including stray marks, overvotes,^[7] blanks, unclear marks, tears, wrinkles, stains, or other damage. (E.g., Exhs. "51" and "24".) If this occurs, the voter is given the option to "spoil"^[8] her ballot and cast a new ballot, or she may decline to spoil her ballot and choose instead to let the original ballot go forward as is. (Exh. "51".)

Drobina complains that he prefers that a tabulator machine, rather than a human, reads his ballot and he asserts that Arizona law requires that to happen as Arizona uses tabulator machines. There is no contention that a human reviewing a ballot would ever know who cast the ballot as the parties all agree that a ballot contains no information as to the voter's identity, consistent with Arizona law requiring that ballots be secret. A.R.S. § 16-446(8)(1). Consequently, once a ballot has been cast, given the absence of any voter identification information on a ballot, the ballot cannot be "married" to, or tied back to, a specific voter. No party disputes this fact which the evidence established fully. Thus, it is physically impossible to locate, for any purpose, the ballots that were cast by Aguilera and Drobina on 11/3/2020.

In the normal course, Arizona law provides for ballots that cannot be read by tabulators for various reasons to be "adjudicated" by humans. An alternative to such human involvement is of course that a ballot which the machine cannot read will simply not be counted. That result disadvantages everyone, primarily the disenfranchised voter, but also the electorate, the candidates on the ballot, and the election process. Plaintiffs assert however that "[h]uman beings are by nature fallible and imperfect" (Complaint ¶ 4.14) and therefore inferior to machines, which Plaintiffs assert are infallible and "perfectly accurate."

The Court further finds no evidence established that machines are infallible or perfectly accurate. In fact, Plaintiffs' assertions in this respect are starkly disproven by the very events that bring Plaintiffs to this Court, i.e., Plaintiffs' claims that the ballots they completed and cast could not be read by the tabulator machines into which Plaintiffs inserted their completed ballots. Either Plaintiffs marked or handled their ballots in a manner that caused the tabulators to not be able to read them, or the tabulators experienced some problem that interfered with the machines' ability to do so. It is after all the fallible and imperfect humans who complete ballots, providing opportunity for the voter him or herself to cause inadvertently the very situation that prevents the ballot from being readable by the machine.^[9] Similarly, it is not genuinely debatable that machines at times can and do malfunction, break down, and experience problems operating as designed and expected. In sum, Plaintiffs' underlying, explicitly asserted premise that voting machines are, or are required by law to be, always perfectly accurate is simply not credible, reasonable or provable.

The Court further finds Plaintiffs' failure to establish the core premise of their Complaint—that machines are always infallible and perfect, and that the law requires same—defeats Plaintiffs' claim that they were deprived of a perfect process when the tabulators could not read their ballots automatically and with perfect accuracy. A flawless election process is not a legal entitlement under any statute, EPM rule, or other authority identified by the parties or otherwise known to the Court. Rather, a perfect process is an illusion.

Plaintiffs' first sentence of their Complaint states "Plaintiffs are two individuals who experienced difficulties voting on election day." Plaintiffs thereafter contradict themselves in footnote 1 on page 8 ("Footnote 1") which reads "References to plaintiffs should also be taken to refer to those Maricopa County voters who experienced similar issues." In Aguilera I, Plaintiffs Aguilera and Drobina indicated an intention to certify a class of voters purportedly harmed by using Sharpie markers on their ballots and to proceed with that matter as a class action. No such certification occurred as Plaintiffs voluntarily and shortly dismissed Aguilera I. In this matter, class certification has not been requested. Therefore, in this cause, contrary to Footnote 1, no evidence or claims are properly before the Court concerning possible grievances of any unidentified voters.

Perhaps related to Footnote 1, Plaintiffs called as a Hearing witness Joshua Banko ("Banko"), a former Elections Department clerk who worked on Election Day at the polling location at the Paradise Valley Mall, Entrance 4, in Phoenix. The crux of Banko's testimony was that during the voting at the Paradise Valley Mall on Election Day, he observed issues with the two tabulator machines used at that site accepting ballots from "approximately 80%" of the voters at that location.

The Court further finds Banko's testimony unhelpful to the issues before the Court for two primary reasons.

First, the two specific tabulator machines that Banko testified had issues were not the same tabulators either Aguilera or Drobina used because Banko, Aguilera and Drobina were at three different polling sites on Election Day, each of which location had its own separate tabulator machines.

Second, Banko's description of what he saw and how clearly he could see the marks on various ballots of voters was unreliable. During Election Day, Banko's various assignments included manning the drop box for early voting ballots, acting as a registration clerk, and handling the on-demand ballot printers. Banko contends that he could see, often from a distance, that there were no extraneous votes or lines on the ballots and that the bubbles seemed to be filled in completely and appropriately by the voters who nevertheless were having issues. Banko also assumed he knew which portions of the voters' ballots allowed one or more votes because he himself lived "in proximity" to this polling location and many of the voters' residences were also "in proximity" to this site. While acknowledging that he was "obviously doing other tasks," Banko thinks he got a "good look" at another 15 ballots at least, while he was stationed throughout the polling site. Banko testified that voters having issues were showing their ballots to the Marshall or the Inspector, whose jobs involved addressing such issues. It was not Banko's job to examine the ballot of a voter with an issue. Despite Banko's limited exposure to the voters' ballots, Banko testified that all of "[t]he ballots were in pristine condition."

The Court further finds no probative value to Banko's testimony which was unspecific, categorical, appeared largely speculative and untrustworthy, and was not material to the voting experiences Aguilera and Drobina had at their separate voting locations.

The Court further finds to the extent Banko's testimony was intended to show that the tabulators at one site, different from the polling locations where Plaintiffs voted, experienced problems on Election Day, such evidence directly undercuts Plaintiffs' claims that voting machines are reliably perfect. In addition, the uncontroverted Certificates of Accuracy (Exhs. "45" and "46") verified that successful Logic and Accuracy Tests of the 2020 General Election Combined Voting Equipment were conducted in Phoenix on 10/6/2020, in accordance with A.R.S. § 16-449, and post-election on 11/18/2020.

A.R.S. § 16-446, Specifications of electronic voting system, provides in pertinent part:

A. An electronic voting system consisting of a voting or marking device in combination with vote tabulating equipment shall provide facilities for voting for candidates at both primary and general elections.

B. An electronic voting system shall:

1. Provide for voting in secrecy when used with voting booths.

2. Permit each elector to vote at any election for any person for any office whether or not nominated as a candidate, to vote for as many persons for an office as the elector is entitled to vote for and to vote for or against any question on which the elector is entitled to vote, and the vote tabulating equipment shall reject choices recorded on the elector's ballot if the number of choices exceeds the number that the elector is entitled to vote for the office or on the measure.

3. Prevent the elector from voting for the same person more than once for the same office.

4. Be suitably designed for the purpose used and be of durable construction, and may be used safely, efficiently and accurately in the conduct of elections and counting ballots.

5. Be provided with means for sealing the voting or marking device against any further voting after the close of the polls and the last voter has voted.

6. When properly operated, record correctly and count accurately every vote cast.

7. Provide a durable paper document that visually indicates the voter's selections, that the voter may use to verify the voter's choices, that may be spoiled by the voter if it fails to reflect the voter's choices and that permits the voter to cast a new ballot. This paper document shall be used in manual audits and recounts.

(Emphasis added.)

As to relief requested, Aguilera requests to be able "to cast a new ballot." (Complaint at 12:10–11.) Such relief is not legally available to Aguilera. Aguilera cast one ballot and cannot lawfully cast another. In addition, once the polls have closed on Election Day, further voting is prohibited. A.R.S. § 16-446(B)(5).

Plaintiffs both seek as part of their requested relief the opportunity to attend the tabulation/adjudication process in person to watch it live and up close now and possibly in the future. Plaintiffs seek an injunction that "require[es] the opening [of] the location where electronic adjudication is taking place to the public in further elections, as well as during any additional electronic adjudication that takes place this election (e.g., as a result of a recount)." (Complaint at 15:4–7.) Plaintiffs contend that the Electronic Adjudication Addendum to the 2019 EPM^[10] (Exh. "24") at § (D), entitled Electronic Vote Adjudication Procedures, justifies such an Injunction where it states "1. The electronic adjudication of votes must be performed in a secure location, preferably in the same location as the EMS^[11] system, but open to public viewing." (Complaint ¶ 4.42, emphasis added.) Specifically, Plaintiffs assert that "Defendants failed to open the location where electronic adjudication occurs to the public." (Complaint, ¶ 4.43.)

The Court further finds the relief requested is not appropriate or feasible for several reasons. First, the adjudication of votes had been completed by or on the date of the Hearing. Second, the uncontested evidence established that the public is able to view the adjudication process on an Elections Department website which broadcasts to the public these very Election Department activities, yet both Plaintiffs testified that they had not even looked at the website. Although Plaintiffs' counsel argued that the website's camera view was distant or in some fashion inadequate to satisfy Plaintiffs, this was argument of counsel since Plaintiffs had never actually availed themselves of the website viewing opportunity to know personally what was visible or whether it was satisfactory.

Third, the Court questions a process which permits anyone other than the authorized personnel hired/appointed to do so, to view a ballot in the fine detail Plaintiffs desire. Disclosing the details of another voter's ballot to a member of the public offends ballot secrecy. If Aguilera or Drobina had asked to watch closely in some manner the adjudication or processing of her or his own ballot, secrecy would not be an issue. However, because, as all parties agree, it is impossible to associate a ballot, once cast, with any specific voter, neither Plaintiff could have watched her/his own ballot being processed or adjudicated. Furthermore, the Court finds Plaintiffs did not establish that the public website fails to satisfy the Electronic Adjudication Addendum § (D)(1) requirement that adjudication be "open to public viewing".

In the Motions to Dismiss, Defendants and Intervenor contend that the Complaint should be dismissed under the doctrine of laches. The Court disagrees.

The defense of laches is available in election challenges. Harris v. Purcell, 193 Ariz. 409, 412, 973 P.2d 1166, 1169 (1998); Mathieu v. Mahoney, 114 Ariz. 456, 458–59, 851 P.2d 81, 83–84 (1993). This doctrine is an equitable counterpart to the statute of limitations, designed to discourage dilatory conduct. Harris, 193 Ariz. at 410 n. 2, 973 P.2d at 1167 n.2. Laches will generally bar a claim when the delay is unreasonable and results in prejudice to the opposing party. Id. at 412, 973 P.2d at 1169. … A laches defense, however, cannot stand on unreasonable conduct alone. Harris, 193 Ariz. at 412, 973 P.2d at 1169. A showing of prejudice is also required. Id.; Mathieu, 174 Ariz. at 459, 851 P.2d at 84. … The real prejudice caused by delay in election cases is to the quality of decision making in matters of great public importance. Mathieu, 174 Ariz. at 460, 851 P.2d at 85. The effects of such delay extend far beyond the interests of the parties. Waiting until the last minute to file an election challenge "places the court in a position of having to steamroll through the delicate legal issues in order to meet the deadline for measures to be placed on the ballot." Id. at 459, 851 P.2d at 84 (citation omitted). We repeat our caution that litigants and lawyers in election cases "must be keenly aware of the need to bring such cases with all deliberate speed or else the quality of judicial decision making is seriously compromised." Id. at 460, 851 P.2d at 85. Late filings "deprive judges of the ability to fairly and reasonably process and consider the issues … and rush appellate review, leaving little time for reflection and wise decision making." Id. at 461, 851 P.2d at 86. It is imperative that we consider fairness not only to those who challenge a ballot initiative, but also to the sponsors who place a measure on the ballot, the citizens who sign petitions, the election officials, and the voters of Arizona. Harris, 193 Ariz. at 414, 973 P.2d at 1171.

Sotomayor v. Burns, 199 Ariz. 81, 82–83 ¶¶ 6, 8 and 9 (2000).

The Court further finds under the circumstances presented that although Plaintiffs could have proceeded more expeditiously, substantial prejudice is not shown and the Court therefore proceeds on the merits.^[12]

"To gain standing to bring an action, a plaintiff must allege a distinct and palpable injury. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2191, 2206, 45 L.Ed.2d 343 (1975). An allegation of generalized harm that is shared alike by all or a large class of citizens generally is not sufficient to confer standing. Id. at 499, 95 S.Ct. at 2205." Sears v. Hull, 192 Ariz. 65, 69 ¶ 16 (1998).

The Court further finds Plaintiffs fail to allege harm of the nature required to achieve standing. Plaintiffs both cast their ballots. Plaintiffs both allege that they would prefer the process to be different. A change in the established process goes to the process used with and available to all voters, not uniquely to Aguilera and Drobina.

Recognizing federal law as instructive, the Court in Arizonans for Second Chances, Rehab., and Pub. Safety v. Hobbs, 249 Ariz. 396, 471 P.3d 607, 616 ¶ 22 (2020), analyzed redressability, noting that "a party must show that their requested relief would alleviate their alleged injurty." (Id. ¶ 25, citing Bennett v. Napolitano, 206 Artz. 520, 525 ¶ 18 (2003).)

For the reasons discussed above, the relief sought by Plaintiffs would not alleviate their alleged injuries in how their ballots were processed and handled. That fully complete process is a locked box, in effect. It is impossible to open the box, to identify or locate Plaintiffs' ballots, to review or change those ballots, and equally impossible for either Plaintiff to cast another ballot as doing so would contravene Arizona law.

Plaintiffs have alleged six causes of action, and Defendants and Intervenor have moved to dismiss all of them. The Court has not expressly and individually called out above each of those claims because Plaintiffs' underlying allegations and asserted injuries are one nucleus, on which all claims are founded. None of Plaintiffs' claims survive dismissal for the reasons addressed above. Furthermore, were none of the grounds warranting dismissal of the Complaint on its face upheld, Plaintiffs' evidence did not meet the burden of proof necessary to establish that (1) the tabulators' inability to automatically read Plaintiffs' ballots was caused by Defendants and by the tabulators malfunctioning as opposed to Plaintiffs' completion and/or handling of their ballots; (2) Plaintiffs actually suffered an injury; and (3) Plaintiffs' requested relief is both possible and addresses their perceived injuries.

It is ordered therefore dismissing with prejudice this action for failure to state a claim upon which relief can be granted, or alternatively, denying the relief sought by Plaintiffs given their failure to produce evidence demonstrating entitlement to same.

As no further matters remain pending, the Court signs this minute entry as a final Judgment entered under Ariz. R. Civ. P. 54(c).

HONORABLE MARGARET R. MAHONEY
JUDGE OF THE SUPERIOR COURT

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1. W. James Sneeringer received his B.S. in Mathematics from Duke University, and his Ph.D. in Computer Science from University of North Carolina at Chapel Hill. He testified to having 20 years of experience examining voting systems for the state of Texas. (Hearing Exh. "32".) Over those years, Dr. Sneeringer conducted 60 to 70 examinations of 10 different voting systems, although he never examined either Maricopa County's actual voting system, or the Dominion Voting Systems, Democracy Suite 5.5-8, which Maricopa County uses in its elections. Dr. Sneeringer testified that in the course of conducting those 60 to 70 voting systems examinations, he had never come across a perfect voting system.
2. On 11/20/2020, from approximately 9:00 AM to 5:00 PM, by agreement of the parties, this Court held a proceeding (the "Hearing") which combined (1) the evidentiary hearing on Plaintiffs' Complaint; and (2) oral argument on two Motions to Dismiss, one filed by the Maricopa County Defendants (collectively, "Defendants") and the other filed by Intervenor Arizona Democratic Party ("Intervenor" or "ADP").
3. Plaintiffs Laurie Aguilera ("Aguilera") and Donovan Drobina ("Drobina") (collectively, "Plaintiffs") filed a Verified Complaint ("Complaint") on 1111212020. Although the Complaint is required to be verified, only Aguilera verified the Complaint; Drobina did not. Aguilera explicitly limits her Verification as follows: "My knowledge of course being limited to the facts of my particular circumstances." (Id., second sentence.) Aguilera's particular circumstances are not the same circumstances Drobina experienced. In addition, Drobina's Declaration (Exh. "D" to Complaint) does not verify the Complaint, and was dated 11/4/2020 which date is well before 11/12/2020 when the Complaint herein was both dated and filed, but 11/4/2020 is consistent with the date these Plaintiffs filed an earlier Complaint in CV2020-014083 ("Aguilera I"). Further, in the final paragraph of both of Drobina's Declarations (attached to Plaintiffs' Amended Complaint in Aguilera I and Exh. "D" to the Complaint herein), Drobina states expressly that "Kolodin Law Group PLLC is not my attorney," yet Kolodin Law Group PLLC appears in the Complaint herein as counsel representing Drobina and likewise Kolodin Law Group PLLC has appeared on Drobina's behalf at all proceedings throughout the entirety of both this matter and Aguilera I.
4. Unless otherwise noted, all exhibits referenced hereinafter are to exhibits received in evidence during the Hearing.
5. No poll worker or other witness testified to any of the details relating to Aguilera's or Drobina's specific experiences on Election Day, such that the descriptions provided of same are all from Plaintiffs' memories alone.
6. Witness Scott Janett, Director of Election Day and Emergency Voting for the Maricopa County Election Department, referred to "misread ballots" as ballots that a tabulator would not accept, in which case the tabulator would feed the ballot back out of the machine to the voter. The voter then could opt to spoil his ballot or have it fed into Drawer 3, also referred to as the "misread bin" by witness Joshua Banko, a former Elections Department clerk.
7. An "overvote" results when a voter marks more votes than allowed. (Exh. "51".)
8. A "spoiled" ballot is one a voter chooses not to have counted. (Exh. "51".)
9. Plaintiffs both testified that they completed their respective ballots perfectly, dismissing the possibility that anything they may have done or not done to their ballots caused the problems they experienced. The Court finds such uncorroborated testimony unpersuasive as both wholly conclusory and self-serving.
10. As agreed by all parties, the EPM has the force of law. A.R.S. § 16-452(C); Arizona Public Integrity Alliance v. Fontes, 2020 WL 6495694 (Ariz. Nov. 5, 2020 ¶ 16).
11. "EMS" is the election management system.
12. Given the urgency of the compressed time constraints in this and similar election matters, this Court elected, with the parties' agreement, to hear argument on the Motions to Dismiss simultaneously with hearing the evidence on the relief sought by Plaintiffs in the Complaint. The Court determined that doing otherwise could negatively impact or potentially preclude a timely resolution including appeal for the parties.