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Mary R. O'Grady, 011434

COp,

Joseph N. Roth, 025725
Joshua D. Bendor, 031908
OSBORN MALEDON, P.A.
2929 North Central Avenue, Suite 2100
Phoenix, Arizona 85012-2793
(602) 640-9000
mogrady@omlaw.com
jrot @omlaw.com
jbendor@omlaw.com

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Attorneys for Plaintiff

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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

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IN AND FOR THE COUNTY OF MARICOPA

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RASEAN CLAYTON

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Plaintiff,

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vs.

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KANYE WEST; DONALD ANGLIN;
KRISTIN ANGLIN; KELLI WHITEHEAD;
BRITTANI QUALE; WILLIAM QUALE;
RACHEL WALLACE-SASSARINI;
PATRICK WALLACE-SASSARINI;
KEITH GILBERT; MARILYN TUCK;
MICHELE VRABEL; MARK RENBERG;
KATIE HOBBS, in her official capacity as
the Secretary of State of Arizona; EDISON J.
WAUNEKA, in his official capacity as the
Apache County Recorder; APACHE
COUNTY BOARD OF SUPERVISORS, in
their official capacity; DAVID W.
STEVENS, in his o ficial capacity as
Cochise County Recorder; COCHISE
COUNTY BOARD OF SUPERVISORS, in
their official capacity; PATTY HANSEN, in
her official capacity as the Coconino County
Recorder; COCONINO COUNTY BOARD
OF SUPERVISORS, in their official
capacity; SADIE JO BINGHAM, in her
official capacity as Gila County Recorder;
GILA COUNTY BOARD OF
SUPERVISORS, in their official capacity;
WENDY JOHN, in her official capacity as
Graham County Recorder; GRAHAM
COUNTY BOARD OF SUPERVISORS, in
their official capacity; SHARIE MIHEIRO,
in her official capacity as Greenlee County
Recorder; GREENLEE COUNTY BOARD
OF SUPERVISORS in their official

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Case No.

CV 2 0 2 0 ·- 0 1 0 5 53
APPLICATION FOR TEMPORARY
AND PERMANENT INJUNCTIVE
RELIEF - WITH NOTICE

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capacity; RICHARD GARCIA, in his
capacity as the La Paz County Recorder; LA
PAZ COUNTY BOARD OF
SUPERVISORS, in their official capacity;
ADRIAN FONTES, in his official capacity
as the Maricopa County Recorder;
MARICOPA COUNTY BOARD OF
SUPERVISORS, in their official capacity;
KRI STI BLAIR, in her official capacity as
the Mohave County Recorder; MOHAVE
COUNTY BOARD OF SUPERVISORS, in
their official capacity; MICHAEL SAMPLE,
in his official capacity as Navajo County
Recorder; NAVAJO COUNTY BOARD OF
SUPERVISORS, in their official capacity; F.
ANN RODRIGUEZ, in her official capacity
as the Pima County Recorder; PIMA
COUNTY BOARD OF SUPERVISORS, in
their official capacity; VIRGINIA ROSS, in
her official capacity as the Pinal County
Recorder; PINAL COUNTY BOARD OF
SUPERVISORS, in their official capacity;
SUZANNE SAINZ, in her official capacity
as the Santa Cruz County Recorder; SANT A
CRUZ COUNTY BOARD OF
SUPERVISORS, in their official capacity;
LESLIE M. HOFFMAN, in her official
capacity as the Yavapai County Recorder;
YAVAPAI COUNTY BOARD OF
SUPERVISORS, in their official capacity;
ROBYN STALLWORTH POUQUETTE, in
her official capacity as the Yuma County
Recorder; and YUMA COUNTY BOARD
OF SUPERVISORS, in their official
capacity,

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Defendants.

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Plaintiff seeks urgent relief to enjoin the Secretary of State and county officials

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from allowing Kanye West (and his slate of candidates for the office of presidential

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elector) to be included on ballots for the upcoming November 3, 2020 general election.

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Emergency attention and relief is needed because the final printing deadline for most

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Arizona ballots is September 8, the business day after Mr. West's filing deadline.

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This case presents a purely legal question: may a person who is registered as a

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member of a recognized political party (i.e., a Republican, Democrat, or Libertarian

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party member) qualify to appear on the ballot as an independent candidate for
8654283v3

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President or the office of presidential elector? The answer is no. Under A.R.S. § 16-

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341, a candidate "who is not a registered member of a political party that is

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recognized" may use the procedures set out in $ 16-341 to qualify for the ballot.

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Mr. West ( and his slate of candidates for the office of presidential electors) is

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making a last-minute push to appear on ballots in Arizona and elsewhere. He intends

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to submit nomination petitions to list him as an independent candidate under A.R.S.

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$16-341. But Mr. West is a registered Republican; so are 10 of 11 of his slate of

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presidential elector candidates. Mr. West therefore cannot qualify to appear on the

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ballot under§ 16-341 because he is a registered member of a recognized political

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party. In addition, none of his putative presidential electors have filed the required

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"statement of interest" under A.R.S. $ 16-341 (I), meaning that any signatures gathered

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to date are "invalid and subject to challenge."

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Normally, Plaintiff would have brought this after the candidate submitted

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nomination papers and petitions. See A.R.S. $ 16-351(B) (a challenge may be brought

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for any reason relating to qualifications under§ 16-341). Waiting is not an option,

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however, because Mr. West has not yet submitted his necessary papers, and the

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deadline to do so is September 4, the business day before the September 8 "drop dead"

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deadline for ballot printing for Maricopa, Pima, and six other counties (the remaining,

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less-populous counties have a September 9 deadline). Without a court order by

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September 8 enjoining the names of Mr. West and his putative presidential electors

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from appearing on the ballot, Arizona's most populous counties will proceed with

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printing their ballots with those candidates. If Plaintiff waited until Mr. West

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submitted papers, it would very likely be too late to obtain meaningful relief before

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ballots must be printed. And without relief, irreparable harm is certain, resulting in

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substantial confusion and harm to Plaintiff and the rest of Arizona's voters. Thus,

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although Mr. West has not yet formally attempted to qualify for the ballot, this case is

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ripe for judicial review now and emergency injunctive relief is needed.

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This Application is supported by the following memorandum of points and
authorities, the verified complaint, and the complaint's exhibits.

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 Memorandum of Points and Authorities

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I.

Background
A.

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Independent candidates for president and the office of presidential
elector who are not registered with a recognized party may appear
on the ballot by submitting qualifying petitions under§ 16-341.

When voters in Arizona vote for President, they mark a vote for their candidate

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of choice on the ballot. That single vote is a vote for the candidate and a vote for the

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candidate's slate of eleven candidates for the office of presidential elector, whose

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names are listed next to the candidate's name on the ballot. A.R.S. § 16-502(C)(l),

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§ 16-507(B) ("[O]ne mark directly next to a presidential candidate's surname shall be

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counted as a vote for each elector in the bracketed list next to the presidential and vice-

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presidential candidates."). As in most states, the presidential electors for the candidate

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with the most votes give all eleven of Arizona's electoral votes at the electoral college.

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A.R.S. $ 16-212(B).

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A candidate for president and the slate of electors may qualify to appear on the

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ballot in Arizona in two ways: (1) by obtaining a party nomination from a recognized

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political party or (2) if not a member of a recognized political party, by submitting

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nomination petitions with a sufficient number of signatures. See A.R.S. $ 16-344

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(appointment by party of presidential electors); A.R.S. § 16-341; see generally Ariz.

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Sec'y of State, Running for U.S. President in Arizona Candidate Guide (Sept. 13,

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2019) available at

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https://azsos.gov/sites/default/files/Running%20for%29President%20handbook.pdf.

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See also Ariz. Sec'y of State, 2019 Elections Procedures Manual at 114-116 (Dec. 19,

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2019) available at

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https://azsos.gov/sites/default/files/2019 ELECTIONS PROCEDURES MANUAL

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APPROVED.pdf (describing procedure for nomination by party or as

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independent/unaffiliated candidate). 1

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A candidate may also qualify as a write-in candidate, but their name would
not appear on the ballot. See A.R.S. $ 16-312.
8654283v3

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For the 2020 election cycle, there are three recognized political parties in

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Arizona: Republican, Democratic, and Libertarian. See Compl. ,i 25. For candidates

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from one of those parties, "[t]he chairman of the state committee of' the recognized

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political party "shall appoint candidates for the office of presidential elector" and the

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chairman files their nomination papers "in a form prescribed by the secretary of state."

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A.R.S. § 16-344.

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Independent candidates who are "not a registered member of a [ recognized]

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political party," however, must obtain a minimum number of nomination petition

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signatures for a slate of eleven candidates for "the office of presidential elector."

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A.R.S. § 16-341 (A), (G) (requiring a number of electors "equal to the number of

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United States senators and representatives in Congress from this state"). The candidate

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must also submit "[a] nomination paper for each presidential elector designated."

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A.R.S. § 16-341 (J). See Nader v. Brewer, 531 F .3d 1028, 1031 (9th Cir. 2008)

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( describing process and explaining that petitions "are filed for the office of presidential

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elector rather than for the presidential candidate"). In addition, the candidate must

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submit his or her own nomination paper, designate the vice-presidential running mate

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and the names of the presidential electors, and "[a] nomination paper for each

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presidential elector designated shall be filed with the candidate's nomination paper."

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A.R.S. § 16-341(1).2

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The deadline for independent candidates to submit nomination petitions and

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papers is no later than 60 days before the general election, which is September 4, 2020.

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A.R.S. $ 16-341(G).

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The Secretary of State's form for independent presidential elector nomination
papers states, among other things, that "I meet the statutory requirements to be
nominated" and "am not a member of a recognized political party in the State of
Arizona." See Sec'y of State Candidate Guide, Ch. 4, available at
https://azsos.gov/sites/default/files/Running%20for%20President%20Handbook.pdf.
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B.

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Before collecting nomination petition signatures, independent candidates must
file a "statement of interest" with the filing officer (here, the Secretary of State).
A.R.S. $16-341() (requiring statement of interest to be filed "[n]ot later than the date
of the first petition signature on a nomination petition"). Any signature collected
before the statement of interest is filed is invalid. Id. Although the individual
presidential and vice presidential candidates are exempted from this requirement,
candidates for the office of presidential elector are not exempted. See A.R.S. $16341 (1)(3).

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Independent candidates must file a statement of interest with the
Secretary of State; West's putative presidential electors have filed
none.

As of August 31, no statements of interest have been filed for any of West's
candidates for the office of presidential elector. Comp 1.

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C.
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38.

West is a registered Republican and 10 of 11 of the candidates for
the office of presidential elector are registered Republicans.

West is a registered Republican. See id.

,r 27 at Ex. C (West party registration

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form). All but one of West's candidates for the office of presidential elector are

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registered Republicans in Arizona. See id.

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Only one of West's 11 electors is an independent, unaffiliated with any of the

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at Ex. D, E (registration records).

recognized parties. 1d.3 1, Ex. D.

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Mr. West is preparing to submit last-minute nomination petitions as
an independent candidate.

On or about July 4, 2020, West announced publicly that he was running for

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President of the United States. Compl. 15. Since then, West has attempted to qualify

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for the November 2020 general election ballot in several states, including Arizona. Id.

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Despite that he and 10 of his 11 presidential electors are Republicans, West is
using the nominating procedures of $ 16-341 to qualify as an independent candidate.

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West is reportedly paying $8 per signature to obtain signatures for his nominating

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petitions of presidential electors. 1d.18. His first petition circulator registered one

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week ago, on August 24. Id. ,i 20. As of August 30, 73 petition circulators have

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registered with the Secretary of State's office to circulate nomination petitions for

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West. 1d.21. The campaign is using the Secretary of State's "Independent"

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Presidential Elector Nomination and seeking to be listed on the ballot as

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"Independent."

1d 22 at Ex. B (West campaign sample petition nomination form).

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As of August 31, West had not submitted any nominating petitions to the

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Secretary of State. West's campaign has confirmed with the Secretary of State's office

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that the campaign intends to submit some petitions before the September 4 deadline,

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with a supplemental filing of the remaining petitions on the September 4 deadline. Id.

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23at Ex. A.

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E.

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The deadline for ballot printing for the general election is
September 8 for most of Arizona's population.

According to the Secretary of State, the ""drop-dead' ballot printing deadlines"

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in each county is September 8 for the most populous counties (including Maricopa,

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Pima, Pinal, and Coconino) and September 9 for the remaining counties. See Id. ,i 46

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at Ex.Fat 1 (S.O.S. 8/27/2020 Mem. to County Recorders and Election Directors).

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Although the election is November 3, counties must begin transmitting early ballots to

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military and overseas voters 45 days before the election and to Arizona voters 27 days

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before the election. 52 U.S.C. § 20302(a)(8); A.R.S. §§ 16-542(D) -543(A).

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Because of the Labor Day weekend, there are no business days between the

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deadline to submit nomination petitions on Friday, September 4 and the ballot printing

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deadline on Tuesday, September 8. There is thus essentially no time between the filing

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deadline and the printing deadline to resolve claims regarding West's nomination

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petition or qualification to appear on the ballot. If Plaintiff waits to bring this

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challenge until after West actually files the deficient nomination petitions, there would

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likely not be time to get a court to order that he be removed from the ballot. Indeed,
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the Secretary of State's office has advised counties that "if the SOS does qualify Mr.

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West to appear on the ballot by your county's ballot printing deadline, the SOS

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believes counties SHOULD include Mr. West on the ballot, even though a challenge

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may be pending or the challenge period is still open." Compl.

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the counties will print ballots with the names of Mr. West and his putative electors

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unless enjoined from doing so by their respective deadlines.

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Ex. F at 2. Thus,

Accordingly, Plaintiff brings this claim now, after West's campaign has

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confirmed that West intends to submit nomination petitions on or just before the

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deadline, but with enough time for the Court to consider and resolve Plaintiffs claim.

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II.

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Legal argument

A.

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The Court should enjoin West and his electors from appearing on
the ballot.

The Court should grant the urgent injunctive relief requested because Plaintiffs

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claim satisfies all of the requirements for injunctive relief: "(1) [a] strong likelihood"

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of success on the merits; (2) "[t]he possibility of irreparable injury ... if the requested

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relief is not granted;" (3) the balance of hardships favors Plaintiff; and ( 4) "[p ]ublic

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policy favors the injunction." Shoen v. Shoen, 167 Ariz. 58, 63 (App. 1990). Courts

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apply a sliding scale in assessing these factors. Smith v. Ariz. Citizens Clean Elections

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Comm 'n, 212 Ariz. 407,410, 110 (2006). A TRO is appropriate when a plaintiff

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shows "either 1) probable success on the merits and the possibility of irreparable

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injury; or 2) the presence of serious questions and the balance of hardships tip[ s]

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sharply in his favor" of the moving party. Shoen, 167 Ariz. at 63 (internal quotation

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marks and citation omitted).

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Plaintiff will succeed on the merits: West and the candidates
for office of presidential electors fail to qualify under§ 16-341
because they are registered with a recognized party.

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The case on the merits is straightforward and it turns on the plain text of§ 16341: "Any qualified elector who is not a registered member of a political party that is
8654283v3

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recognized pursuant to this title may be nominated as a candidate for public office

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otherwise than by primary election or by party committee pursuant to this section"

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( emphasis added). This text unambiguously means that a person who is a registered

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member of a recognized political party may not be nominated "as a candidate for

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public office ... pursuant to this section." When the text is "clear and unambiguous

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there is no need to resort to other methods of statutory interpretation to determine the

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legislature's intent." State v. Christian, 205 Ariz. 64, 66, ,i 6 (2003). The statute's

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language "is the 'best evidence of" the legislature's intent. In re MH 2006-000490,

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214 Ariz. 485, 488, 10 (App. 2007). (citation omitted).

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West's effort to get on the ballot plainly fails to qualify under this text. West is

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seeking to be placed on the ballot as a candidate for President. And each of West's

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putative presidential electors is "a candidate for public office" because presidential

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elector is a "public office" to which a candidate is nominated. See A.R.S. § 16-341 (A),

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(G) (referring to nomination petitions "for the office of presidential elector"); A.R.S.

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§ 16-212(C) (addressing eligibility "to hold the office of presidential elector"). West is

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a registered Republican, 10 of the candidates for office of presidential elector are

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registered Republicans, and the Republican party is a "recognized" party under Title

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16. Consequently, West and his slate of electors fail to qualify as someone "who is not

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a registered member of a political party." A.R.S. § 16-34l(A).

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The analysis should end there. Only when "the meaning is unclear from

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language and context," may a court "employ secondary tools" of interpretation.

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Rasor v. Nw. Hosp., LLC, 243 Ariz. 160, 164, 20 (2017). Those other tools of

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interpretation do not help West's position in any case.

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Every court to describe the meaning and purpose of§ 16-341 confirms that the

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statute's procedure for ballot access is reserved for persons who are not members of

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recognized political parties. See Nader, 531 F.3d at 1031 ("[A] person who is not a

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member of a recognized party may gain a place on the ballot by filing nomination

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petitions" under§ 16-341); Browne v. Bayless, 202 Ariz. 405, 407, { 5(2002)
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(characterizing $ 16-341 as allowing a candidate to have "his or her name placed on

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the general election ballot ... as an independent candidate"); Clifton v. Decillis, 187

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Ariz. 112, 115 (1996) ("Republicans, Democrats, Libertarians, and various other

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qualified party politicians cannot use the nominating procedure other than by primary

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election.") (citing A.R.S. $ 16-341). Not one case has held that a registered member of

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a recognized party may nevertheless use the $16-341 procedures to sneak on the

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ballot.

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Moreover, the Secretary of State's Elections Procedures Manual3 also confirms
that a person registered with a recognized party may not use $ 16-341's nomination

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procedure to get on the ballot. See Manual at 110 (nomination procedures under § 16-

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341 are for a candidate "who is not registered with a recognized political party (i.e., an

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'independent' or 'unaffiliated' candidate)"; id. at 107 ("[T]here are two methods for

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obtaining a nomination ... one [is] reserved for 'independent' candidates (i.e., those

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not affiliated with a recognized political party)"); id. at 116("A candidate who is not

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affiliated with a recognized political party label may seek nomination as an

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'independent' candidate.").

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And if that is not clear enough, the Secretary of State's forms for "Independent"

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nomination papers for president, vice president, and presidential electors asks the

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submitting party to sign a form that states, among other things:

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"I meet the statutory requirements to be nominated as a candidate for public

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office at the general election and I am not a member of a recognized political

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party in the State of Arizona."

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See Sec'y of State, Running for U.S. President in Arizona Candidate Guide at Ch. 4

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(sample nomination papers) (emphasis added).4

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The Elections Procedures Manual is available at
https://azsos.gov/sites/default/files/2Q19 ELECTIONS PROCEDURES MANUAL
APPROVED.pdf.
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The Candidate Guide is available at
https://azsos.gov/sites/default/files/Running%20for%20President%20Handbook.pdf.
8654283v3

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In sum, there is no credible argument that West or his electors are qualified to

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use§ 16-341 's nomination procedures to sneak onto the ballot. The outcome on the

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merits here is clear: West and his electors may not appear on the ballot using the

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nomination procedures under § 16-341 because those procedures are reserved for

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persons who are not members of a recognized party.

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2.

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Plaintiff will also succeed on the merits because West's
candidates for the office of presidential elector have not filed
"statements of interest" as required by § 16-341(1).

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As noted above, someone seeking to become a candidate via§ 16-341 must now

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submit a "statement of interest" on or before "the date of the first petition signature on

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a nomination petition." A.R.S. $ 16-341(0). "Any nomination petition signatures

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collected before the date the statement of interest is filed are invalid and subject to

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challenge." Id.

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That subsection does not apply to certain types of candidates, including

S

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"[c]andidates for president or vice president of the United States." A.R.S.

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341(1)(3). Candidates for the office of presidential elector are not among the exempt

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categories. As of the filing of this case, none of West's putative presidential electors

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had filed a statement of interest. Compl.

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gathered before that occurs are invalid and should not be counted toward their

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nominations for that office in the event West and his electors are allowed to proceed

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under§ 16-341. Furthermore, the Secretary of State's office should be enjoined from

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accepting nomination petitions not preceded by statements of interest for each elector.

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3.

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,r 38.

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Accordingly, any petition signatures

Plaintiff and the public at large will suffer irreparable harm
unless defendants are enjoined.

Shoen factors two, three, and four (the likelihood of irreparable harm, balance of

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hardships, and public policy) all weigh decisively in Plaintiffs favor. As explained

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above and set forth in the Complaint ( 46), the "drop-dead" deadline for printing on

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the ballot is imminent. The counties will print ballots with West unless enjoined by
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their respective ballot printing deadlines. And if West is included on the ballot, the

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harm is done. Including an unqualified candidate on the printed ballot will confuse

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voters and infringes on the core constitutional right to vote for qualified candidates.

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Voters risk throwing away a vote on a disqualified candidate. That sort of harm cannot

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be remedied; the deprivation of a constitutional right "unquestionably constitutes

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irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976).

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In addition to harm to voters like Plaintiff, allowing an unqualified candidate to

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slip onto the ballot because of time constraints also injures other qualified candidates

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and frustrates the State's "interest, if not ... duty, to protect the integrity of its political

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processes from frivolous or fraudulent candidacies." Storer v. Brown, 415 U.S. 724,

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733 (1974). (citation and quotation omitted); see also Adams v. Bolin, 77 Ariz. 316,

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320 (1954) (explaining that the purpose of ballot access requirements is to provide "a

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mechanism which in some measure weeds out the cranks, the publicity seekers, the

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frivolous candidates who have no intention of going through with the campaign, and

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those who will run for office as a lark if there is no difficulty in being placed on the

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ballot").

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In contrast, West can claim comparably minimal harm, even if the result is to

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remove him from the printed ballots. Setting aside his meritless legal position, even if

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West could qualify in Arizona under§ 16-341, it would make no practical difference to

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his electoral chances. West will not be able to qualify for the ballot in enough states to

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muster enough electoral votes to prevail. West's minimal interest in playing a spoiler

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candidate on Arizona's ballot is not enough to outweigh all of the factors favoring

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emergency relief.

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According to reports, West's campaign is either past the deadline, never filed
required papers, or otherwise been denied access to the ballot in 33 states. See
https://www.cnn.com/2020/08/28/politics/kanye-west-2020-campaign/index.html.
8654283v3

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B.

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Plaintiff recognizes that challenges to a candidate's nomination petitions and

This case is ripe for the Court's review now.

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qualifications should generally be filed after the candidate files to run. See, e.g.,

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Moore v. Bolin, 70 Ariz. 354, 358 (1950). This case is an exception. Whether a legal

5

action is ripe for judicial determination turns on "the fitness of the issues for judicial

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decision" and "the hardship to the parties of withholding court consideration." Pac.

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Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm 'n, 461 U.S. 190,

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201 (1983) (citation omitted). Here, those factors weigh heavily in favor of hearing the
case now. The issues are fit for judicial review now and will not change. There are no

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thorny fact issues to decide and no discovery or evidence to take. The Court need only

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answer legal questions concerning the interpretation of§ 16-341.

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The "hardship" caused by waiting is substantial. As explained above, if

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Plaintiff waits until the papers are filed, it will likely be too late for the Court to be able

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to provide a meaningful remedy. See Lubin v. Thomas, 213 Ariz. 496, 497-98,

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(2006) ("Time is of particular importance because all disputes must be resolved before

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the printing of absentee ballots"). Plaintiff is filing to allow at least one week before

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the printing deadline. Waiting any longer harms Plaintiff because he could lose the

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right to meaningfully "challenge a candidate for any reason relating to qualifications

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for the office sought." A.R.S. $16-351(B). More broadly, waiting for West's last-

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minute filings also increases the burden on the public officials who are responsible for

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the administrative burden of a general election and are being asked to process a last-

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minute nomination. See Compl•49-51.

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III.

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Conclusion.
The Court should issue an order temporarily and permanently enjoining

Defendants from placing West and his putative presidential electors on the ballot.

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DATED this 31st day of August, 2020.

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OSBORN MALEDON, P.A.

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/s/
Joseph N. Roth
Mary R. 0' Grady
Joseph N. Roth
Joshua D. Bendor
2929 North Central Ave., Suite 2100
Phoenix, Arizona 85012-2793

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Attorneys for Plaintiff

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