U.S. District Judge James A. Soto said Thursday that the Pima County recorder's office is already heavily burdened and extremely busy with vote counting and signature verifications during the COVID-19 pandemic. The office is struggling to process about 25,000 early ballots that pour in daily, with all of the county's 14 early voting sites running at full capacity, according to the judge.
Forcing Pima County Recorder F. Ann Rodriguez to add a last-minute early voting site on the Pascua Yaqui tribe's reservation would cause "substantial hardship and disruption" to the recorder's administration of the election, Judge Soto said, noting that while tribal members may have to travel eight miles to their nearest early voting site, there are many other voters that have to travel greater distances.
"Plaintiff has not met its burden to show irreparable harm, and compelling the Pima County recorder to set up a last-minute early voting site would cause substantial hardship to the recorder's ability to properly administer the election, and would hurt the public interest inasmuch it would detrimentally impact the ongoing 2020 general election in Pima County," Judge Soto said.
In comments Friday to Law360, Jonathan Diaz of the Campaign Legal Center, counsel for the tribe, said the judge's order is a disappointing decision that largely rested on the timing relative to the upcoming election and the voting site's original closure in 2018.
"It's always an uphill climb in election litigation as you get closer to Election Day itself," Diaz said. "Regardless of the outcome I think it was important to our clients that they fight this fight and stand up for the voting rights of tribal members. The case is still live, but in terms of getting relief for this November, it's not going to happen through this case."
Representatives for the county did not immediately respond to a request for comment Friday.
Rodriguez claimed in an Oct. 18 filing supporting her motion to dismiss the Pascua Yaqui tribe's suit that the tribe had failed to show standing. Rodriguez argued that the parens patriae standing doctrine, which allows a sovereign such as a tribe to sue, requires that claims must be brought on behalf of all citizens and not just a subset.
"The tribe does not seek to vindicate the rights of all members; it only seeks to vindicate the rights of the minority of its voters who vote early and in person," the county wrote.
The Pascua Yaqui tribe replied Oct. 19, citing the 1982 U.S. Supreme Court case Alfred L. Snapp & Son Inc. v. Puerto Rico. In that ruling, the tribe said, the court found that "a sovereign has standing to sue as parens patriae if a 'sufficiently substantial segment of its population' is injured by the challenged conduct."
The lack of in-person early voting on the reservation during the COVID-19 pandemic "makes participation in the election difficult, if not impossible, for many Yaqui voters," the tribe added, noting limited transit options to the closest early voting site.
The Pascua Yaqui tribe filed its complaint seeking an emergency voting site on Oct. 12, claiming that Rodriguez is denying the reservation's more than 3,600 residents equal access to vote in violation of the Voting Rights Act.
The tribe is seeking to compel Rodriguez to install a ballot drop box and operate an early voting site on the reservation from Oct. 26 through Oct. 30 by reinstating a site shuttered in 2018. Rodriguez has told the tribe in letter correspondence that a history of low voter turnout at the Pascua Yaqui site and funding limitations forced the site's closure.
The county's Oct. 18 filing also raised the Supreme Court's Purcell doctrine, which can discredit voting rights challenges brought close to Election Day.
The tribe "fails to justify its decision to wait until three weeks before the November 3, 2020 general election to ask a court to reinstate an on-reservation early-voting site that was eliminated more than two years ago," the county said.
The tribe countered Oct. 19 that the court would not run afoul of Purcell if it "narrowly tailors its injunction to the circumstances at issue without altering existing election laws or rules."
The Pascua Yaqui's complaint accuses Rodriguez of violating Section 2 of the Voting Rights Act, which prohibits voting qualifications that result in the "denial or abridgment of the right of any citizen of the United States to vote on account of race or color."
Removing the reservation's early voting location has created a "disparate burden" on Native American voters, leaving them about three to four times more distant from early voting sites than whiter areas of the Tucson region, according to the tribe's court filings.
The tribe is represented by Danielle Lang, Jonathan Diaz and Aseem Mulji of the Campaign Legal Center, Patty Ferguson-Bohnee of the Indian Legal Clinic at Arizona State University and Mary R. O'Grady and Joshua D. Bendor of Osborn Maledon PA.
The Pima County Recorder is represented by Eric H. Spencer, Brett W. Johnson, Colin P. Ahler, Ryan J. Regula and Derek C. Flint of Snell & Wilmer LLP.
The case is Pascua Yaqui Tribe v. Rodriguez, case number 4:20-cv-00432, in the U.S. District Court for the District of Arizona, Tucson Division.
--Additional reporting by Emma Whitford. Editing by Orlando Lorenzo.
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