CHRIS DEROSE Clerk of the Superior Court fy Clarissa Cruzs Deputy i a Date 11/08/2018 Tine 15:24:00 Roopali H, Desai (Bar No. 024295) Descripti D, Andrew Gaona (Bar No. 028414 ie age eat COPPERSMITH BROCKELMAN PLC Sarit Rea 3800 North Central Avenue, Suite 1900 LECTION conte Phoenix, Arizona 04 ' TOTAL AMOUNT 6023246030 Receipt 26078135 lesai@eblawyers.com agaona@eblawyers.com Sambo (Bo) Dul he No, gn0313) Sarah R, Gonski (Bar No. 032567 PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Telephone: 602.351.8000 Facsimile; 602.648.7000 Email: $Dul@perkinseoie.com SGonski@perkinscoie.com Attorneys for Plaintiff Arizona Democratic Party ARIZONA SUPERIOR COURT MARICOPA COUNTY ARIZONA DEMOCRATIC PARTY, No. CV 2018-013995 Plaintiff, VERIFIED COMPLAINT FOR a STATUTORY SPECIAL ACTION ADRIAN FONTES, in his official capacity as MARICOPA COUNTY RECORDER, Defendant. Plaintiff the Arizona Democratic Party (“ADP”) brings this special action against Defendant Adrian Fontes, Maricopa County Recorder (“Recorder” or “Defendant”), to compel compliance with the Atizona Public Records Law, ARS. § 39-121 ef seq. Plaintiff alleges as follows: INTRODUCTION 1. Plaintiff ADP brings ‘this action to compel the Recorder to immediately provide previously requested public records, including conditional provisional ballots, out- of-precinct ballots, and ballots not counted, relating to the November 6, 2018 election. The majority of these records are sought to allow Plaintiff to notify and assist eligible Arizonans one)Bewr austen i 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 in curing any defects in their ballots before the deadline to cure in Maricopa County, which is Wednesday, November 14th, so that such ballots are counted, 2. On October 30, 2018, Plaintiff ADP sent a written public records request to the Recorder, seeking, inter alia, a list of conditional provisional ballots cast on Election Day and a list of carly ballots cast in which the signature had not yet been verified, was in question, was missing, or was otherwise rejected. See Ex. 1. 3. In response to the public records request, the Recorder made a commitment to provide responsive documents “on or immediately after November 7, 2018.” See Ex. 2. However, the Recorder did not provide such records on November 7, 2018 and has not yet provided them, 4. Upon information and belief, the Recorder has created and is maintaining a list (or lists) of ballots that need further action in order to be counted, as well as ballots that have been rejected for one or more reasons. This list (or lists) constitute a public records under Arizona’s public records statutes, A.R.S. § 39-121, et. seq. 5. Upon information and belief, the Recorder maintains a “needs packet,” checklist, status document, or other record that tracks the status of the Recorder’s communication(s) with a voter for each ballot that needs further action in order to be counted. This checklist, status document, or other record constitutes a public records under Arizona’s public records statutes, A.R.S. § 39-121, ed, seq. 6. On November 7, 2018, Plaintiff ADP sent another written request to the Recorder requesting any “document or report listing every Maricopa County voter who cast an out-of=precinct ballot that will not be accepted for count in the November 6, 2018 general election, and contact information for the voters who cast those ballots,” and any “document or report listing every Arizona voter registered in another county who cast a ballot in Maricopa County in the November 6, 2018 general election, and contact information for the 3. ms Plaintiff ADP also renewed its public records request from October 30, 2018 voters who cast those ballots.” See Ey with the Recorder numerous times, but no responsive records have been provided. e880) 2wR ON Sow r)sa ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 a7 28 8 Under Arizona law, the Recorder has a duty to “promptly” respond to public records request, see A.R.S. § 39-121.01(D)(1), which has been defined as acting quickly or without delay in the context of the circumstances of the case at issue, W, Valley View, Inc. v. Maricopa County Sheriff's Office, 216 Ariz, 225, 230 (App. 2007). 9. Here, the Recorder has not complied with his statutory duty to respond “promptly” under the circumstances, and failed to produce records on the date he promised to produce records, If he is not compelled to immediately produce responsive records, the deadline to cure conditional provisional ballots and ballots requiring further action due to a signature mismatch, which is November 14 in Maricopa County, will pass, without the efforts of the Arizona Democratic Party to assist individuals in curing, resulting in the rejection of ballots cast by many eligible Arizona voters. The Recorder's delay in producing the records is irreparably harming the ability of Plaintiff to assist eligible voters to ensure that their vote counts in the November 2018 election. This delay is directly contrary to the primary purpose of the Arizona Public Records Law, which is to provide for transparency, so that the public “may monitor the performance of government officials and their employees.” Phoenix New Times, Inc. v. Keegan, 201 Ariz. 344, 351 4 33 (App. 2001) (citation omitted), 10. Plaintiff thus seeks to enjoin the Defendant from wrongfully withholding the responsive records in violation of the Arizona Public Records Law. NATURE OF THE PARTIES, JURISDICTION, AND VENUE lf. This is a statutory special action to compel the production of public records pursuant to the Arizona Public Records Law, A.R.S. § 39-121, et seq. 12. Plaintiff the Arizona Democratic Party is a state committee, as defined by 52 U.S.C. § 30101(15), dedicated to electing candidates of the Democratic Party to public office throughout the State of Arizona, including to the office of United States Senate, The ADP has many members and constituents who cast a provisional ballot or an carly ballot that has not yet been counted in the November 2018 election and who seek to have their ballot counted, To advance its mission, the ADP is also dedicated to ensuring that all ballots (oonetso 3