1 Roopali H.

Desai (024295)
D. Andrew Gaona (028414)
2 Kristen Yost (034052)
COPPERSMITH BROCKELMAN PLC
3 2800 North Central Avenue, Suite 1900
Phoenix, Arizona 85004
4 T: (602) 381-5478
5 rdesai@cblawyers.com
agaona@cblawyers.com
6 kyost@cblawyers.com
Attorneys for Proposed Intervenor
7 Arizona Secretary of State Katie Hobbs
8
9 ARIZONA SUPERIOR COURT

10 MARICOPA COUNTY

11 KELLI WARD, ) No. CV2020-015285

)
12 Plaintiff, )
) ARIZONA SECRETARY OF STATE
13 v. ) KATIE HOBBS’ MOTION TO
) INTERVENE
14 CONSTANCE JACKSON; FELICIA )
ROTELLINI; FRED YAMASHITA; JAMES )
15 MCLAUGHLIN; JONATHAN NEZ; LUIS ) (Assigned to The Hon. Randall Warner)
16 ALBERTO HEREDIA; NED NORRIS; )
REGINA ROMERO; SANDRA D. )
KENNEDY; STEPHEN ROE LEWIS; and (Hearing Set for Nov. 30, 2020 at 10:30 am)
17 )
STEVE GALLARDO, )
18 )
Defendants. )
19 )
20
21 Pursuant to Rules 24(a) and 24(b), Ariz. R. Civ. P., Katie Hobbs, in her official capacity
22 as Arizona Secretary of State (“Secretary”), moves to intervene as a defendant. The Secretary’s
23 counsel conferred with counsel for all parties and they do not oppose this Motion.
24 As the state’s Chief Elections Officer, the Secretary has a significant interest in the subject
25 of this lawsuit, and a judgment in Petitioner’s favor would directly interfere with her important
26 interests. For the reasons in the Secretary’s Proposed Opposition to Verified Petition for Rule 27
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1 Discovery [see Exhibit 1], 1 the Court should dismiss Petitioner Dr. Kelli Ward’s Rule 27
2 Petition, and if Petitioner files an election contest, consolidate the contest with this action. In the
3 meantime, the Secretary has a right to intervene as a defendant under Rule 24(a), and
4 alternatively, the Court should grant permissive intervention under Rule 24(b).
5 I. Argument.
6 A. The Secretary Should Be Permitted to Intervene as a Matter of Right.
7 Under Rule 24(a)(2), Ariz. R. Civ. P., “[o]n timely motion, the court must permit anyone
8 to intervene who . . . claims an interest relating to the subject of the action, and is so situated that
9 disposing of the action in the person’s absence may as a practical matter impair or impede the
10 person’s ability to protect that interest, unless existing parties adequately represent that interest.”
11 See also Ariz. R. Civ. P. 19(a) (necessary parties). Rule 24 is “remedial and should be construed
12 liberally in order to assist parties seeking to obtain justice in protecting their rights.” Planned
13 Parenthood Ariz., Inc. v. Am. Ass’n of Pro-Life Obstetricians & Gynecologists, 227 Ariz. 262,
14 279 ¶ 53 (App. 2011) (quotation omitted).
15 “Intervention of right is appropriate when the party applying for intervention meets all
16 four of the following conditions: (1) the motion must be timely; (2) the applicant must assert an
17 interest relating to the property or transaction which is the subject of the action; (3) the applicant
18 must show that disposition of the action may impair or impede its ability to protect its interest;
19 and (4) the applicant must show that the other parties would not adequately represent its
20 interests.” Woodbridge Structured Funding, LLC v. Ariz. Lottery, 235 Ariz. 25, 28 ¶ 13 (App.
21 2014). The Secretary easily satisfies each of these requirements.
22 1. The Secretary’s Motion Is Timely.
23 First, there is no question that the Secretary’s motion is timely. In deciding whether a
24 motion to intervene is timely, Arizona courts consider “the stage to which the lawsuit has
25 1
The Secretary submits the Proposed Opposition as her proposed “pleading in intervention”
26 under Ariz. R. Civ. P. 24(c)(1)(B).
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1 progressed,” “whether the applicant could have attempted to intervene earlier,” and “whether the
2 delay in moving for intervention will prejudice the existing parties in the case.” State ex rel.
3 Napolitano v. Brown & Williamson Tobacco Corp., 196 Ariz. 382, 384 ¶ 5 (2000). Petition filed
4 this action on November 24, and notified the Secretary the next day, Wednesday, November 25.
5 Because of the Thanksgiving holiday on Thursday, the Secretary is filing this motion to intervene
6 one business day later. The Court set a hearing for Monday, November 30 at 10:30 a.m., and the
7 Secretary is filing this motion before that hearing. The Secretary acted as quickly as possible
8 under the circumstances and allowing her to intervene at this early stage will not prejudice any
9 other parties.
10 2. The Secretary Has an Interest in the Subject of This Action, Which
Would Be Impaired by Disposition of This Case.
11
12 Second, the Secretary has an interest relating to the subject matter of this action, in the
13 form of ensuring that Petitioner does not succeed in obtaining discovery to which she is not
14 entitled for a proposed election contest seeking to invalidate the will of Arizona’s voters (with
15 no good-faith basis to do so). If Petitioner were to succeed in obtaining a Court order approving
16 her proposed pre-litigation fishing expedition, such a judgment “would have a direct legal effect
17 upon [the Secretary’s] rights” as the state executive who oversees Arizona’s elections.
18 Woodbridge Structured Funding, LLC, 235 Ariz. at 28 ¶ 15.
19 Indeed, it would create a new mechanism for litigants to disrupt and delay the electoral
20 process, sow confusion in the results, and side-step the specific limitations the Legislature placed
21 on election contests. Allowing Petitioner to do so would directly interfere with the Secretary’s
22 duty to oversee the orderly administration of elections, and her important interest in ensuring
23 that Arizonans (1) get the finality the deserve and (2) continue to have well-placed trust in
24 Arizona’s elections systems and elections administrators.
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1 3. Defendants Cannot Adequately Represent the Secretary’s Interests.
2 Third, while the existing Defendants will no doubt defend this action and represent their
3 own interests well, they cannot adequately represent the Secretary’s unique interests. When
4 evaluating Rule 24’s nearly identical federal counterpart, courts hold that “[t]he burden of
5 showing inadequacy of representation is ‘minimal’ and satisfied if the applicant can demonstrate
6 that representation of its interests ‘may be’ inadequate.” Citizens for Balanced Use v. Montana
7 Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011) (quoting Arakaki v. Cayetano, 324 F.3d
8 1078, 1086 (9th Cir.2003)).
9 Here, the Secretary has a duty oversee the orderly and uniform administration of the
10 election, and she has an important interest upholding Arizona’s “strong public policy favoring
11 stability and finality of election results.” Arizona City Sanitary Dist., 224 Ariz. at 334 ¶ 12
12 (quotation omitted). This interest differs from Defendants’ narrower interest in preserving their
13 victory in Arizona. The existing Defendants thus have no reason to make the same arguments
14 the Secretary intends to make, because her duties and interests are distinct from and broader than
15 theirs. Cf. Heritage Vill. II Homeowners Ass’n v. Norman, 246 Ariz. 567, 571 ¶ 15 (App. 2019)
16 (representation was inadequate when the existing parties’ “interests diverged” from the
17 intervenors’ interests). The Secretary intends to assert the arguments detailed in her Proposed
18 Opposition, and if Petitioner files an election contest that is consolidated with this action, she
19 intends to offer arguments and defenses related to the administration of the election and
20 Arizona’s election procedures, including those related to signature verification, ballot
21 duplication, and observers. As the state’s Chief Elections Officer, the Secretary should have a
22 right to raise defenses that are unique to her interests.
23 For all these reasons, the Court should allow the Secretary to intervene as a matter of
24 right.
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1 B. The Secretary Should Be Granted Permissive Intervention.
2 Alternatively, the Secretary should be granted permissive intervention. Under Rule
3 24(b)(1)(B), Ariz. R. Civ. P., “[o]n timely motion, the court may permit anyone to intervene who
4 . . . has a claim or defense that shares with the main action a common question of law or fact.”
5 Courts may also grant permissive intervention to “a state governmental officer or agency” if any
6 claims or defenses are “based on . . . any regulation, order, requirement, or agreement issued
7 or made under a statute administered by the officer or agency.” Ariz. R. Civ. P. 24(b)(2). Both
8 reasons for permissive intervention exist here.
9 The Secretary has timely moved to intervene (within one business day), and as detailed
10 above, her defenses “have a question of law or fact in common” with the claims brought by
11 Petitioner. Some of the claims also purport to be “based on” provisions in the EPM [see Petition
12 Ex. 1 ¶¶ 34-35], which the Secretary adopted under A.R.S. § 16-452 with the approval of the
13 Governor and the Attorney General. Given the early stage of this case and the expedited nature
14 of election litigation, the Secretary’s intervention will not delay or prejudice the ability of the
15 parties to adjudicate their rights. Ariz. R. Civ. P. 24(b)(3) (“[T]he court must consider whether
16 the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”).
17 To the contrary, resolving Petitioner’s meritless claims based on both Defendants’ and the
18 Secretary’s defenses in a single action is the most efficient way to ensure that the issues here are
19 resolved in a fair and uniform way.
20 At bottom, even if the Court does not allow the Secretary to intervene as of right, the
21 Court should allow permissive intervention.
22 II. Conclusion.
23 For all these reasons, the Secretary requests that the Court grant this Motion and allow
24 the Secretary to intervene as a defendant. The Secretary also requests that the Court deny
25 Petitioner’s Petition for the reasons in the Secretary’s Proposed Opposition.
26
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1 RESPECTFULLY SUBMITTED this 30th day of November, 2020.
2 COPPERSMITH BROCKELMAN PLC
3 By /s/ Roopali H. Desai
Roopali H. Desai
4 D. Andrew Gaona
5 Kristen Yost
Attorneys for Proposed Intervenor
6 Arizona Secretary of State Katie Hobbs
7
8
9
10
11
12 ORIGINAL efiled and served via email
this 30th day of November, 2020, upon:
13
14 Dennis I. Wilenchik (admin@wb-law.com)
John “Jack” D. Wilenchik (jack@wb-law.com)
15 Lee Miller
16 Wilenchik & Bartness
2810 North 3rd Street
17 Phoenix, AZ 85004
admin@wb-law.com
18
Attorneys for Plaintiff
19
Sara R. Gonski (sgonski@perkinscoie.com)
20 Perkins Coie LLP
21 2901 North Central Avenue, Suite 2000
Phoenix, AZ 85012
22
Roy Herrera (herrerar@ballardspahr.com)
23 Daniel Arellano (arellanod@ballardspahr.com)
24 Ballard Spahr LLP
1 East Washington Street, Suite 2300
25 Phoenix, AZ 85004
26 Attorneys for Arizona Democratic Party

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1 Thomas P. Liddy (liddyt@mcao.maricopa.gov)
Emily Craiger (craigere@mcao.maricopa.gov)
2
Joseph I. Vigil (vigilj@mcao.maricopa.gov)
3 Joseph J. Branco (brancoj@mcao.maricopa.gov)
Joseph LaRue (laruej@mcao.maricopa.gov)
4 Maricopa County Attorney’s Office
5 225 West Madison Street
Phoenix, AZ 85003
6 Attorneys for Maricopa County
7 /s/ Sheri McAlister
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