Nos. 19-1257 & 19-1258

In the Supreme Court of the United States__________________MARK BRNOVICH, ATTORNEY GENERAL OF ARIZONA, ET AL.,

Petitioners,v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL., Respondents.-----------------------

ARIZONA REPUBLICAN PARTY, ET AL., Petitioners,

v.DEMOCRATIC NATIONAL COMMITTEE, ET AL., Respondents.__________________

On Writs of Certiorari to the United States Court ofAppeals for the Ninth Circuit__________________

JOINT APPENDIX__________________JOSEPH A. KANEFIELDChief Deputy and Chief of Staff Counsel of RecordOFFICE OF THE ARIZONA ATTORNEY GENERAL2005 N. Central Ave.Phoenix, AZ 85004(602) 542-8017Joe.Kanefield@azag.govCounsel for Mark Brnovich, et al.MICHAEL A. CARVIN Counsel of RecordJONES DAY51 Louisiana Ave., N.W.Washington, DC 20001(202) 879-7643macarvin@jonesday.comCounsel for Arizona RepublicanParty, et al.

JESSICA RING AMUNSON Counsel of RecordJENNER & BLOCK LLP1099 New York Avenue NWSuite 900Washington, DC 20001(202) 639-6023JAmunson@jenner.comCounsel for Katie Hobbs,Arizona Secretary of StateMARC ERIK ELIAS Counsel of RecordPERKINS COIE, LLP700 13th St, NW, Ste. 800Washington, DC 20005-3960(202) 434-1609melias@perkinscoie.comCounsel for Democratic NationalCommittee, et al.

November 30, 2020Petitions for Writs of Certiorari filed April 27, 2020

Petitions for Writs of Certiorari granted October 2, 2020

i

JOINT APPENDIX

TABLE OF CONTENTS

Relevant Docket Entries United States DistrictCourt for the District of Arizona (PhoenixDivision), No. 2:16-cv-01065-DLR . . . . . . . . . JA 1

Relevant Docket Entries United States Court ofAppeals for the Ninth Circuit, No. 18-15845 . . . . . . . . . . . . . . . . . . . . . . . . . JA 13

Department of Justice Preclearance File BjellandMemo (June 23, 2011). . . . . . . . . . . . . . . . . . JA 33

Arizona Election Procedures Manual Excerpt(June 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . JA 37

Expert Report of Jonathan Rodden, PhD Excerpt(June 10, 2016) . . . . . . . . . . . . . . . . . . . . . . . JA 42

Declaration of Brad Nelson Excerpt(August 22, 2016) . . . . . . . . . . . . . . . . . . . . JA 112

Board worker Training Manual Primary ElectionExcerpt (August 30, 2016) . . . . . . . . . . . . . JA 115

Second Expert Report of Jonathan Rodden, PhD (May 26, 2017). . . . . . . . . . . . . . . . . . . . . . . JA 120

Second Expert Report of Dr. Allan J. LichtmanExcerpt (May 26, 2017). . . . . . . . . . . . . . . . JA 199

Transcript of Bench Trial, Day 3 Excerpt (October 5, 2017) . . . . . . . . . . . . . . . . . . . . . JA 201

ii

Order in a Civil Case in the United States DistrictCourt for the District of Arizona(May 8, 2018). . . . . . . . . . . . . . . . . . . . . . . . JA 208

Judgment in a Civil Case in the United StatesDistrict Court for the District of Arizona(May 8, 2018). . . . . . . . . . . . . . . . . . . . . . . . JA 240

Amended Findings of Fact and Conclusions of Lawin the United States District Court for theDistrict of Arizona (May 10, 2018) . . . . . . . JA 242

Opinion and Dissenting Opinion in the UnitedStates Court of Appeals for the Ninth Circuit (September 12, 2018) . . . . . . . . . . . . . . . . . JA 360

Order in the United States Court of Appeals for theNinth Circuit (January 2, 2019). . . . . . . . . JA 493

Brief for the United States as Amicus Curiae inSupport of Appellees on Rehearing En Banc andSupporting Affirmance in the United StatesCourt of Appeals for the Ninth Circuit (February 15, 2019) . . . . . . . . . . . . . . . . . . JA 495

Defendant-Appellee Arizona Attorney GeneralMark Brnovich’s Motion to Take Judicial Noticein the United States Court of Appeals for theNinth Circuit (March 14, 2019) . . . . . . . . . JA 526

Exhibit A to Motion - North Carolina StateBoard of Elections’ March 13, 2019 Order inIn re Investigation of Election RegularitiesAffecting Counties Within the 9thCongressional District . . . . . . . . . . . . . . JA 531

iii

En Banc and Dissenting Opinions in the UnitedStates Court of Appeals for the Ninth Circuit (January 27, 2020) . . . . . . . . . . . . . . . . . . . JA 576

Order in the United States Court of Appeals for theNinth Circuit (February 11, 2020) . . . . . . . JA 831

Order in the United States Court of Appeals for theNinth Circuit (April 9, 2020) . . . . . . . . . . . JA 833

JA 1

RELEVANT DOCKET ENTRIES

United States District Courtfor the District of Arizona

No. 2:16-cv-01065-DLR

Feldman, et al. v. Arizona Secretary of State’s Office,et al.

Date Filed # Docket Text04/15/2016 1 COMPLAINT. Filing fee received:

$ 400.00, receipt number 0970-12857791 filed by Kirkpatrick forU.S. Senate, Julio Morera, LeslieFeldman, Arizona DemocraticP a r t y , A l e j a n d r a R u i z ,Peterson Zah, DSCC, DemocraticNational Committee, CleoOvalle, Mercedez Hymes, LuzMagallanes, Marcia Baker(submitted by Daniel Barr).(Attachments: #1 Civil CoverS h e e t ) ( K G M ) ( E n t e r e d :04/15/2016)

04/19/2016 12 AMENDED COMPLAINTagainst All Defendants filed byKirkpatrick for U.S. Senate,Julio Morera, Leslie Feldman,Arizona Democratic Party,Alejandra Ruiz, Peterson Zah,DSCC, Democratic NationalCommittee, Cleo Ovalle,Mercedez Hymes, LuzMagallanes, Marcia

JA 2

Baker.(Gonski, Sarah) (Entered:04/19/2016)

05/09/2016 39 MOTION to Intervene byArizona Republican Party.(Attachments: # 1 PartialAnswer-in-Intervention otAmended Complaint, # 2 Text ofProposed Order)(Johnson,Brett)(Entered: 05/09/2016)

05/10/2016 44 MINUTE ENTRY for proceedingsheld before Judge Douglas LRayes: Telephonic Conference re:scheduling and discovery relatedto the forthcoming Motion forPreliminary Injunction held on5/10/2016. With no objection, ITIS ORDERED granting 27 Motionto Intervene by Bernie 2016Incorporated; and granting 39Motion to Intervene by ArizonaRepublican Party. After hearingfrom the parties, the CourtORDERS the statewide voter fileshall be produced to plaintiffs bythe State defendants. Motion forProtective Order re: the statewidevoter file is due by no later thanFriday, 5/13/2016. Response tothe motion for protective order isdue by no later than 5/20/2016.The parties are directed to meetand confer to resolve any otherdiscovery requests. Telephonic

JA 3

Conference set for 5/17/2016 at10:00 AM re: any outstandingdiscovery requests not resolvedthrough the parties meet andconfer. Counsel for plaintiffs isresponsible for making thenecessary arrangements for theconference call. All partiesparticipating in the conferencecall shall do so via a landlineonly. The use of cellular phoneswill not be permitted. Plaintiffs’Motion for Preliminary Injunctionshall be filed by no later than6/10/2016. Defendants’ responsedue by no later than 7/25/2016.Plaintiffs’ reply due by no laterthan 8/1/2016. Oral Argument onthe motion for preliminaryinjunction set for 8/12/2016 at9:00 AM in Courtroom 506, 401West Washington Street,Phoenix, AZ 85003 before JudgeDouglas L Rayes.

APPEARANCES: Telephonicappearance by Elisabeth Frost,Amanda Callais, Daniel Barr,Marc Elias, and Sarah Gonski forPlaintiffs. Telephonic appearanceby Andrew Gaona, AndrewGordon and Malcom Seymour forIntervenor Plaintiff Bernie 2016Incorporated . Te lephonic

JA 4

appearance by Kara Karlson andKaren Hartman-Tellez forDefendants Arizona Secretary ofState’s Office, Mark Brnovich,Michele Reagan. Telephonicappearance by Colleen Conner,Joseph Vigil, and Thomas Liddyfor Defendants Denny Barney,Steve Chucri, Steve Gallardo,Clint Hickman, Andy Kunasek,Maricopa County Board ofSupervisors, Maricopa CountyRec o rder and E lec t i onsDepartment, Karen Osborne,Helen Purcell. Telephonicappearance by Brett Johnson,Sara Agne, and Tim LaSota forIntervenor Defendant ArizonaRepublican Party. (CourtReporter David German.)Hearing held 10:35 AM to 11:28AM. This is a TEXT ENTRYONLY. There is no PDFdocument associated with thisentry . (MMO) (Entered :05/10/2016)

05/16/2016 56 *MOTION to Intervene ofCounc i lman Bi l l Gates ,Councilwoman Suzanne Klapp,Sen. Debbie Lesko, and Rep. TonyRivero by Arizona RepublicanParty, Bill Gates, Suzanne Klapp,Debbie Lesko, Tony Rivero.

JA 5

(Attachments: # 1 Exhibit, # 2Text of Proposed Order)(Agne,Sara) *Modified to add filers on5/17/2016 (REK). (Entered:05/16/2016)

06/10/2016 72 MOTION for Pre l iminaryInjunction on Polling PlaceAllocation and Provisional BallotClaims by Arizona DemocraticParty, DSCC, DemocraticNational Committee, LeslieFeldman, Hillary for America,Mercedez Hymes, Kirkpatrick forU.S. Senate, Luz Magallanes,Julio Morera, Cleo Ovalle,Peterson Zah. (Attachments: # 1Text of Proposed Order)(Barr,Daniel) (Entered: 06/10/2016)

06/10/2016 84 MOTION for Prel iminaryInjunction of H.B. 2023 byArizona Democratic Party, DSCC,Democratic National Committee,Leslie Feldman, Hillary forAmerica, Mercedez Hymes,Kirkpatrick for U.S. Senate, LuzMagallanes, Julio Morera, CleoO v a l l e , P e t e r s o n Z a h .(Attachments: # 1 Text ofProposed Order)(Barr, Daniel)(Entered: 06/10/2016)

06/28/2016 126 ORDER granting 56 Motion toIntervene pursuant to Fed. R.Civ. P. 24(b). (See Order for

JA 6

details.) Signed by Judge DouglasL Rayes on 6/27/2016. (MMO)(Entered: 06/28/2016)

09/23/2016 204 ORDER that the Joint Motion toStrike Portions of Plaintiffs’Reply Memorandum and ReplyExhibits filed by Defendants andthe ARP, 167 , is DENIED. IT ISFURTHER ORDERED thatPlaintiffs Motion for PreliminaryInjunction of H.B. 2023, 84 , isDENIED. Signed by JudgeDouglas L. Rayes on 9/23/16.(CLB) (Entered: 09/23/2016)

09/23/2016 206 *NOTICE OF INTERLOCUTORYAPPEAL to 9th Circuit Court ofAppeals re: 204 Order on Motionfor Preliminary Injunction, Orderon Motion to Strike by ArizonaDemocratic Party, DSCC,Democratic National Committee,Leslie Feldman, Hillary forAmerica, Mercedez Hymes,Kirkpatrick for U.S. Senate, LuzMagallanes, Julio Morera,CleoOvalle, Peterson Zah. Filing feereceived: $ 505.00, receiptn u m b e r 0 9 7 0 - 1 3 4 2 9 1 2 2 .(Attachments: # 1 Exhibit A-Court Order, # 2 Exhibit B-Representation Statement)(Gonski, Sarah) *Modified tocorrect event on 9/27/2016*

JA 7

(REW). (Entered: 09/23/2016)10/11/2016 214 ORDER denying Plaintiffs’ 72

Motion for Preliminary Injunctionon Provisional Ballot Claims. (SeeOrder for details.) Signed byJudge Douglas L Rayes on10/11/2016. (MMO) (Entered:10/11/2016)

10/15/2016 216 *NOTICE OF INTERLOCUTORYAPPEAL re Prel iminaryInjunction to 9th Circuit Court ofAppeals re: 214 Order on Motionfor Preliminary Injunction byArizona Democratic Party, DSCC,Democratic National Committee,Leslie Feldman, Hillary forAmerica, Mercedez Hymes,Kirkpatrick for U.S. Senate, LuzMagallanes, Julio Morera, CleoOvalle, Peterson Zah. Filing feereceived: $ 505.00, receiptn u m b e r 0 9 7 0 - 1 3 5 0 5 1 6 8 .(Attachments: # 1 Exhibit OrderDenying Plaintiffs’ Motion forPreliminary Injunction, # 2E x h i b i t R e p r e s e n t a t i o nStatement)(Gonski, Sarah)*Modified to correct event type on10/17/2016 (LSP). (Entered:10/15/2016)

12/28/2016 233 *Second AMENDED COMPLAINTagainst Arizona Secretary ofState’s Office, Mark Brnovich,

JA 8

Michele Reagan filed by ArizonaDemocratic Party, DSCC,Democratic National Committee.(Gonski, Sarah) *Modified text on12/28/2016 (REK). (Entered:12/28/2016)

03/03/2017 267 ORDER granting in part anddenying in part 245 Motion toDismiss Second AmendedComplaint as follows: TheArizona Secretary of State’sOffice is hereby DISMISSEDfrom this action; and The StateDefendant’s motion to dismiss forfailure to join a party under Rule19 otherwise is DENIED. (SeeOrder for details.) Signed byJudge Douglas L Rayes on3/3/2017. (MMO) (Entered:03/03/2017)

03/17/2017 268 State Defendants’ ANSWER to233 Amended Complaint by MarkBrnovich, Michele Reagan.(LaRue, Joseph) (Entered:03/17/2017)

04/13/2017 273 ORDER denying Intervenor-Defendants’ 244 Motion toDismiss. (See Order for details.)Signed by Judge Douglas L Rayeson 4/13/2017. (MMO) (Entered:04/13/2017)

04/27/2017 275 ANSWER to 233 AmendedComplaint by Arizona Republican

JA 9

Party, Bill Gates, Suzanne Klapp,Debbie Lesko, Tony Rivero.(Johnson, Brett) (Entered:04/27/2017)

10/18/2017 392 Witness List by ArizonaDemocratic Party, DSCC, andDemocratic National Committee.(MMO) (Entered: 10/19/2017)

10/18/2017 393 Witness List by Michele Reagan,Mark Brnovich, ArizonaRepublican Party, Bill Gates,Suzanne Klapp, Debbie Lesko,and Tony Rivero. (MMO)(Entered: 10/19/2017)

10/18/2017 394 Exhib i t L is t by Ar izonaDemocratic Party, DSCC, andDemocratic National Committee.(MMO) (Entered 10/19/2017)

10/18/2017 395 Exhibit List by Michele Reagan,Mark Brnovich, ArizonaRepublican Party, Bill Gates,Suzanne Klapp, Debbie Lesko,and Tony Rivero. (MMO)(Entered: 10/19/2017)

* * *10/18/2017 410 Amended Witness List by Arizona

Democratic Party, DSCC, andDemocratic National Committee.(MMO) (Entered: 05/07/2018)

* * *

JA 10

05/08/2018 411 ORDER regarding evidentiaryissues: The parties’ objections tothe admissibility of variousdeposition designations areaddressed as stated herein.Plaintiffs’ Exhibits 53, 54, 87, and88 are admitted into evidence.Plaintiffs’ Exhibits 47 and 56 arenot admitted into evidence.Defendants 356 motion to excludeDr. Lichtman’s expert witnesstestimony is GRANTED IN PARTand DENIED IN PART asexplained herein. Defendants’ 356motion to exclude Dr. Rodden’sexpert witness testimony isDENIED as explained herein.(See Order for details.) Signed byJudge Douglas L Rayes on5/8/2018. (MMO) (Entered:05/08/2018)

05/08/2018 413 CLERK’S JUDGMENT - IT ISORDERED AND ADJUDGEDthat pursuant to the Court’sOrder filed May 8, 2018,judgment is entered in favor ofdefendants and against plaintiffson all claims. This action ishereby terminated. (ATD)(Entered: 05/08/2018)

05/09/2018 414 * NOTICE OF APPEAL to 9thCircuit Court of Appeals re: 412Order on Motion for Judgment on

JA 11

Partial Findings, 413 Judgmentby Arizona Democratic Party,DSCC, Democratic NationalCommittee. Filing fee received:$ 505.00, receipt number 0970-15480385. (Attachments: # 1Exhibit A - Findings of Fact andConclusions of Law, # 2 ExhibitB - Representation Statement)(Gonski, Sarah) * Modified to adddocument linkage on 5/9/2018(LAD). (Entered: 05/09/2018)

05/10/2018 416 AMENDED ORDER Findings ofFact and Conclusions of Law -Defendants’ oral motion forjudgment on partial findings(Doc. 384 ) is DENIED as moot.The Court finds in favor ofDefendants and against Plaintiffson all claims. The Clerk shallenter judgment accordingly andterminate this case. Signed byJudge Douglas L Rayes on5/10/18. (DXD) (Entered:05/10/2018)

05/10/2018 417 *AMENDED NOTICE O FAPPEAL to 9th Circuit Court ofAppeals as to 18-15845 re: 414Notice of Appeal re: 416 Order,411 Order, 413 Clerks Judgmentby Arizona Democratic Party,DSCC, Democratic NationalCommittee. (Attachments: # 1

JA 12

Exhibit A - Amended Findings ofFact and Conclusions of Law, # 2Exhibit B - Judgment in a CivilCase, # 3 Exhibit C - Orderregarding Evidentiary Issues, # 4Exhibit D - RepresentationStatement)(Gonski, Sarah)*Modified text/linkage on5/11/2018 (DXD). (Entered:05/10/2018)

05/17/2018 422 MOTION Motion for InjunctionPending Appeal re: 420Telephone Conference, CommonPrompts (Text Only) by ArizonaDemocratic Party, DSCC,Democratic National Committee.(Attachments: # 1 Text ofProposed Order Proposed Order)(Gonski, Sarah) (Entered:05/17/2018)

05/25/2018 428 ORDER denying Plaintiffs’ 422Motion for an injunction pendingappeal. Signed by Judge DouglasL Rayes on 5/25/2018. (MMO)(Entered: 05/25/2018)

JA 13

RELEVANT DOCKET ENTRIES

United States Court of Appeals for the Ninth Circuit

No. 18-15845

The Democratic National Committee, et al. v. MicheleReagan, in her official capacity as Secretary of State

of Arizona, et al.

Date Filed # Docket Text

05/10/2018 1 DOCKETED CAUSE ANDENTERED APPEARANCES OFCOUNSEL. SEND MQ: Yes. Theschedule is set as follows:Mediation Questionnaire due on05/17/2018. Transcript ordered by06/08/2018. Transcript due07/09/2018. Appellants DSCC,The Arizona Democratic Partyand The Democratic NationalCommittee opening brief due08/17/2018. Appellees MarkBrnovich, Attorney General, BillGates, Suzanne Klapp, DebbieLesko, Michele Reagan, TonyRivero and The ArizonaRepublican Party answering briefdue 09/17/2018. Appellant’soptional reply brief is due 21 daysafter service of the answeringbrief. [10867967] (JBS) [Entered:05/10/2018 09:39 AM]

JA 14

05/11/2018 3 Received copy of amended noticeof appeal from district court.[10869486] (RR) [Entered:05/11/2018 10:23 AM]

05/18/2018 5 Filed (ECF) Appellants DSCC,The Arizona Democratic Partyand The Democratic NationalCommittee Motion to expeditecase. Date of service: 05/18/2018.[10878626] [18-15845] (Gonski,Sarah) [Entered:05/18/2018 05:18PM]

05/21/2018 7 Filed (ECF) Appellees Mr. MarkBrnovich and Michele Reaganresponse to motion ([5] Motion(ECF Filing), [5] Motion (ECFFiling) motion to expedite case).Date of service: 05/21/2018.[10879144] [18-15845] (Hartman-Tellez, Karen) [Entered:05/21/2018 09:59 AM]

05/21/2018 10 Filed (ECF) Appellees TheArizona Republican Party, BillGates, Suzanne Klapp, DebbieLesko and Tony Rivero responsejoining motion ([5] Motion (ECFFiling), [5] Motion (ECF Filing)motion to expedite case). Date of

JA 15

service: 05/21/2018. [10879623][18-15845] (Johnson, Brett)[Entered: 05/21/2018 11:45 AM]

06/01/2018 18 Filed order (SIDNEY R.THOMAS, DIARMUID F.O’SCANNLAIN, SUSAN P.G R A B E R , W I L L I A M A .FLETCHER, JOHNNIE B.RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M. CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS) The en banc court haselected to decline originaljurisdiction over this new appeal,but will retain jurisdiction overany subsequent en banc hearing,if any. The motion to refer thecase to the original three judgepanel is GRANTED. See GeneralOrder 3.6.b. The three judge panelhas agreed to accept the newappeal as a comeback case. Allother motions are referred to thethree judge panel. [10892766](WL) [Entered: 06/01/2018 09:06AM]

06/21/2018 22 Filed order (SIDNEY R.THOMAS, CARLOS T. BEA andSANDRA S. IKUTA) The

JA 16

Plaintiffs-Appellants’ motion toexpedite is granted. The openingbrief shall be filed on or beforeJuly 3; the answering brief shallbe filed on or before July 10; andthe reply brief shall be filed on orbefore July 17. The time and placefor oral argument shall be set byseparate order. The Court willdefer consideration of the motionfor an injunction pending appealuntil oral argument is heard.[10916893] (WL) [Entered:06/21/2018 09:11AM]

07/03/2018 26 Submitted (ECF) Opening Brieffor review. Submitted byAppellants DSCC, The ArizonaDemocratic Party and TheDemocratic National Committee.Date of service: 07/03/2018.[10931552] [18-15845] (Gonski,Sarah) [Entered: 07/03/2018 11:54PM]

07/04/2018 27 Submitted (ECF) excerpts ofrecord. Submitted by AppellantsDSCC, The Arizona DemocraticParty and The DemocraticNational Committee. Date ofservice: 07/03/2018. [10931554][18-15845] (Gonski, Sarah)[Entered: 07/04/2018 12:05 AM]

JA 17

07/10/2018 35 Submitted (ECF) Answering Brieffor review. Submitted byAppellees Mr. Mark Brnovich andMichele Reagan. Date of service:07/10/2018. [10937664] [18-15845]--[COURT UPDATE:Attached corrected brief .07/11/2018 by SLM] (Draye,Dominic) [Entered: 07/10/201806:54 PM]

07/10/2018 36 Submitted (ECF) Answering Brieffor review. Submitted byAppellees Bill Gates, SuzanneKlapp, Debbie Lesko, Tony Riveroand The Arizona RepublicanParty. Date of service: 07/10/2018.[10937666] [18-15845]--[COURTUPDATE: Attached correctedbrief and updated docket text toreflect correct brief type.07/11/2018 by SLM] (Johnson,Brett) [Entered: 07/10/2018 07:16PM]

07/10/2018 37 Submitted (ECF) supplementalexcerpts of record. Submitted byAppellees The Arizona RepublicanParty, Tony Rivero, Debbie Lesko,Suzanne Klapp and Bill Gates.Date of service: 07/10/2018.[10937668] [18-15845]--[COURTUPDATE: Attached corrected

JA 18

excerpts of record. 07/11/2018 bySLM] (Johnson, Brett) [Entered:07/10/2018 07:27 PM]

07/17/2018 45 Submitted (ECF) Reply Brief forreview. Submitted by AppellantsDSCC, The Arizona DemocraticParty and The DemocraticNational Committee. Date ofservice: 07/17/2018. [10946124][18-15845] (Gonski, Sarah)[Entered: 07/17/2018 11:32 PM]

07/17/2018 46 Submitted (ECF) further excerptsof record. Submitted byAppellants DSCC, The ArizonaDemocratic Party and TheDemocratic National Committee.Date of service: 07/17/2018.[10946126] [18-15845] (Gonski,Sarah) [Entered: 07/17/2018 11:38PM]

07/20/2018 50 ARGUED AND SUBMITTED TOSIDNEY R. THOMAS, CARLOST. BEA and SANDRA S. IKUTA.[10950242] (SME) [Entered:07/20/2018 02:32 PM]

09/12/2018 52 FILED OPINION (SIDNEY R.THOMAS, CARLOS T. BEA andSANDRA S. IKUTA) We deferredconsideration of DNC’s motion foran injunction pending appeal.

JA 19

Because we affirm the districtcourt, we now DENY that motionas moot. AFFIRMED. Judge: SRTDissenting, Judge: SSI Authoring.F I L E D A N D E N T E R E DJUDGMENT. [11008348] (RMM)[Entered: 09/12/2018 07:20 AM]

09/12/2018 53 Filed (ECF) Appellants DSCC,The Arizona Democratic Partyand The Democratic NationalCommittee petition for rehearingen banc (from 09/12/2018 opinion).Date of service: 09/12/2018.[11009837] [18-15845]--[COURTUPDATE: Attached correct PDFof opinion. 09/13/2018 by SLM](Gonski, Sarah) [Entered:09/12/2018 08:32 PM]

09/24/2018 54 Submitted (ECF) Amicus brief forreview (by government or withconsent per FRAP 29(a)).Submitted by American CivilLiberties Union & American CivilLiberties Union of Arizona. Dateof service: 09/24/2018. [11023634][18-15845] (Ho, Dale) [Entered:09/24/2018 06:58 PM]

09/25/2018 57 Filed order (SIDNEY R.THOMAS, CARLOS T. BEA andSANDRA S. IKUTA) Appellees

JA 20

are directed to file a response toappellants’ petition for rehearingen banc filed September 12, 2018.The response shall not exceed 15pages or 4200 words and shall befiled within 21 days of the date ofthis order. [11023946] (WL)[Entered: 09/25/2018 09:30 AM]

09/26/2018 58 Filed (ECF) Appellants DSCC,The Arizona Democratic Partyand The Democratic NationalCommittee petition for rehearingen banc (from 09/26/2018 opinion).Date of service: 09/26/2018.[11026035] [18-15845] (Gonski,Sarah) [Entered: 09/26/2018 11:17AM]

10/16/2018 59 Filed (ECF) Appellees MicheleReagan and Mr. Mark Brnovichresponse to petition for rehearingen banc. Date of service:10/16/2018. [11049290]. [18-15845]--[COURT UPDATE:Edited docket text to reflectcontent of filing. 10/16/2018 byRY] (Draye, Dominic) [Entered:10/16/2018 04:09 PM]

10/16/2018 60 Filed (ECF) Appellees Bill Gates,Suzanne Klapp, Debbie Lesko,Tony Rivero and The Arizona

JA 21

Republican Party response toPetition for Rehearing En Banc(ECF Filing), Petition forRehearing En Banc (ECF Filing).Date of service: 10/16/2018.[11049451]. [18-15845] (Johnson,Brett) [Entered:10/16/2018 05:08PM]

10/26/2018 62 Filed (ECF) Appellants DSCC,The Arizona Democratic Partyand The Democratic NationalCommittee Corrected Motion tofile supplemental brief for petitionfor rehearing. Date of service:10/26/2018. [11061890] [18-15845](Gonski, Sarah) [Entered:10/26/2018 11:09 AM]

10/29/2018 63 Filed (ECF) Appellees Bill Gates,Suzanne Klapp, Debbie Lesko,Tony Rivero and The ArizonaRepublican Party responseopposing motion ([62] Motion(ECF Filing), [62] Motion (ECFFiling)). Date of service:10/29/2018. [11065050] [18-15845](Johnson, Brett) [Entered:10/29/2018 04:55 PM]

11/01/2018 64 Filed order (SIDNEY R.THOMAS, CARLOS T. BEA andSANDRA S. IKUTA) Appellants’

JA 22

corrected motion for leave to file areply brief in support of theirpetition for rehearing en banc(Dkt. # [62]) is GRANTED. Thereply brief submitted on October26, 2018 (Dkt. # [62]), shall bedeemed filed as of the date of thisorder. Appellants’ previous motionfor leave to file a reply brief insupport of their petition forrehearing en banc (Dkt. # [61]) isDENIED as moot. [11069230](WL) [Entered: 11/01/2018 04:06PM]

11/01/2018 65 Filed (ECF) Appellants DSCC,The Arizona Democratic Partyand The Democratic NationalCommittee reply to petition forrehearing en banc. Date of service:10/26/2018. [11069315].--[COURTENTERED FILING to correctentry [62].] --[Edited: Forward-dated entry to reflect correct filingdate. 11/02/2018 by TYL] (SLM)[Entered: 11/01/2018 04:32 PM]

01/02/2019 68 Filed Order for PUBLICATION(SIDNEY R. THOMAS) Upon thevote of a majority of nonrecusedactive judges, it is ordered thatthis case be reheard en bancpursuant to Federal Rule of

JA 23

Appellate Procedure 35(a) andCircuit Rule 35-3. The three-judgepanel disposition in this case shallnot be cited as precedent by or toany court of the Ninth Circuit.Judge McKeown did notparticipate in the deliberations orvote in this case. [11138974](RMM) [Entered: 01/02/2019 02:13PM]

01/23/2019 79 Submitted (ECF) Amicus brief forreview and filed Motion to becomeamicus curiae. Submitted byAmerican Civil Liberties Union;American Civil Liberties Union ofArizona. Date of service:01/23/2019. [11163991] [18-15845](Ho, Dale) [Entered: 01/23/201903:32 PM]

02/04/2019 83 Appellee Michele Reagan in 18-15845 substituted by AppelleeKatie Hobbs in 18-15845[11177394] (JFF) [Entered:02/04/2019 10:02 AM]

02/15/2019 86 Submitted (ECF) Amicus brief forreview (by government or withconsent per FRAP 29(a)).Submitted by United States ofAmerica. Date of service:02/15/2019. [11197851] [18-15845]

JA 24

(Chandler, Thomas) [Entered:02/15/2019 03:36 PM]

02/15/2019 87 Filed clerk order: The amicusbrief [86] submitted by TheUnited States is filed. No papercopies are required at this time.[11197949] (SML) [Entered:02/15/2019 04:14 PM]

02/19/2018 88 Filed order (SIDNEY R.THOMAS) The motion of theAmerican Civil Liberties Unionand American Civil LibertiesUnion of Arizona for leave to filean amicus curiae brief isGRANTED. The amicus briefsubmitted on January 23, 2019,shall be filed. [11198748] (WL)[Entered: 02/19/2019 10:11 AM]

02/19/2019 89 Filed clerk order: The amicusbrief [79] submitted by ACLU andAmerican Civil Liberties Union ofArizona is filed. No paper copiesare required at this time.[11199761] (SML) [Entered:02/19/2019 02:44 PM]

02/19/2019 90 Filed order (SIDNEY R.THOMAS) Oral argument in thisen banc case will be held at 1:00p.m. on Wednesday, March 27,2019, in Courtroom One of the

JA 25

James R. Browning Courthouse,located at 95 Seventh Street inSan Francisco, California 94103.http://www.ca9.uscourts.gov/information/locations.php [11199830](WL) [Entered: 02/19/2019 02:58PM]

02/25/2019 95 Filed order (SIDNEY R.THOMAS) The unopposed motionof the United States to participatein en banc oral argument insupport of Appellees isGRANTED. The United Statesshall have ten minutes ofAppellees’ allotted argument time.[11205789] (WL) [Entered:02/25/2019 10:25 AM]

03/14/2019 102 Filed (ECF) Appellee Mr. MarkBrnovich Motion to take judicialnotice of the North Carolina StateBoard of Elections’ March 13,2019 Order in In re Investigationof Election Regularities AffectingCounties Within the 9thCongressional District. Date ofservice: 03/14/2019. [11228572][18-15845] (Pappas, Andrew)[Entered: 03/14/2019 04:43 PM]

03/18/2019 103 Filed order (SIDNEY R.THOMAS) Defendant-Appellee

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A t t o r n e y G e n e r a l M a r kBrnovich’s motion for judicialnotice, filed March 14, 2019, isGRANTED. [11232570] (WL)[Entered: 03/18/2019 03:47 PM]

03/27/2019 104 ARGUED AND SUBMITTED TOS I D N E Y R . T H O M A S ,DIARMUID F. O’SCANNLAIN,SUSAN P. GRABER, WILLIAMA. FLETCHER, JOHNNIE B.RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M. CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS. [11244927] (WWP)[Entered: 03/28/2019 09:51 AM]

01/27/2020 123 FILED OPINION (SIDNEY R.THOMAS, DIARMUID F.O’SCANNLAIN, WILLIAM A.FLETCHER, MARSHA S.B E R Z O N , J O H N N I E B .RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M. CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS) REVERSED ANDREMANDED. Judge: WAFA u t h o r i n g , J u d g e : P J WConcurring, Judge: DFO

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D i s s e n t i n g , J u d g e : J S BDissent ing. FILED ANDE N T E R E D J U D G M E N T .[11574519]--[Edited 03/25/2020(attached corrected PDF -corrections made) by AKM](AKM) [Entered: 01/27/2020 08:21AM]

01/31/2020 124 Filed (ECF) Appellee Mr. MarkBrnovich Motion to stay themandate. Date of service:01/31/2020. [11581261] [18-15845](Skinner, Oramel) [Entered:01/31/2020 02:21 PM]

02/03/2020 125 Filed (ECF) Appellees Bill Gates,Suzanne Klapp, Debbie Lesko,Tony Rivero and The ArizonaRepublican Party Motion to staythe mandate. Date of service:02/03/2020. [11583263] [18-15845](Johnson, Brett) [Entered:02/03/2020 03:10 PM]

02/10/2020 126 Filed (ECF) Appellants DSCC,The Arizona Democratic Partyand The Democratic NationalCommittee response to motion([124] Motion (ECF Filing), [124]Motion (ECF Filing)). Date of

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service: 02/10/2020. [11591927][18-15845] (Spiva, Bruce)[Entered: 02/10/2020 03:16 PM]

02/11/2020 127 Filed order (SIDNEY R.THOMAS, DIARMUID F.O’SCANNLAIN, WILLIAM A.FLETCHER, MARSHA S.B E R Z O N , J O H N N I E B .RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M. CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS): Defendant-AppelleeArizona Attorney General MarkBrnovich’s motion to stay theissuance of this Court’s mandatepending application for writ ofcertiorari (Dkt. [124]), filedJanuary 31, 2020, is GRANTED.Fed. R. App. P. 41(b). [11592966](AF) [Entered: 02/11/2020 10:54AM]

03/03/2020 128 Filed (ECF) State of ArizonaMotion to intervene. Date ofservice: 03/03/2020. [11615900][18-15845](Skinner, Oramel)[Entered: 03/03/2020 08:54 AM]

03/13/2020 132 Filed (ECF) Appellants DSCC,The Arizona Democratic Party

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and The Democratic NationalCommittee response opposingmotion ([128] Motion (ECFFiling), [128] Motion (ECFFiling)). Date of service:03/13/2020. [11629395] [18-15845](Spiva, Bruce) [Entered:03/13/2020 01:05 PM]

03/13/2020 133 Filed (ECF) Appellee Katie Hobbsresponse opposing motion ([128]Motion (ECF Filing), [128] Motion(ECF Filing)). Date of service:03/13/2020. [11629502] [18-15845](Amunson, Jessica) [Entered:03/13/2020 01:53 PM]

03/19/2020 134 Filed (ECF) Intervenor - PendingState of Arizona reply to response(). Date of service: 03/19/2020.[11635923] [18-15845] (Skinner,Oramel) [Entered: 03/19/202005:01 PM]

04/09/2020 137 Filed order (SIDNEY R.THOMAS, DIARMUID F.O’SCANNLAIN, WILLIAM A.FLETCHER, MARSHA S.B E R Z O N , J O H N N I E B .RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M. CALLAHAN,MARY H. MURGUIA, PAUL J.

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WATFORD and JOHN B.OWENS): The State of Arizona’smotion to intervene [D.E. [128]] isGRANTED. Judge Owens dissentsfrom this order. [11656097] (AF)[Entered: 04/09/2020 09:31 AM]

04/15/2020 138 Filed order (SIDNEY R.THOMAS, DIARMUID F.O’SCANNLAIN, WILLIAM A.FLETCHER, MARSHA S.B E R Z O N , J O H N N I E B .RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M. CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS) On February 11, 2020,this Court issued an order stayingissuance of the mandate pendingthe filing and disposition of apetition for writ of certiorari withthe United States Supreme Court.Because of the current nationalhealth emergency, the SupremeCourt has extended filingdeadlines for such petitions to 150days from issuance of thechallenged decision. If appelleesdo not file a petition for writ ofcertiorari within the original 90-day deadline of April 27, 2020, itis very unlikely that the Supreme

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Court will be able to rule on apetition before the Novemberelection. Consequently, within 7days after the date of this order,appellees shall respond and showcause why the mandate shouldnot issue on April 27, 2020.Appellants may file a reply to theresponse within 2 days of serviceof the response. [11661743] (OC)[Entered: 04/15/2020 11:48AM]

04/17/2020 139 Filed (ECF) Appellees Bill Gates,Suzanne Klapp, Debbie Lesko,Tony Rivero and The ArizonaRepublican Party response toorder to show cause dated04/15/2020. Date of service:04/17/2020. [11663897] [18-15845](Johnson, Brett) [Entered:04/17/2020 09:00 AM]

04/22/2020 140 Filed (ECF) Appellee Mr. MarkBrnovich and Intervenor State ofArizona response to order to showcause dated 04/15/2020. Date ofservice: 04/22/2020. [11668899][18-15845] (Skinner, Oramel)[Entered: 04/22/2020 04:23 PM]

05/21/2020 146 Filed order (SIDNEY R.THOMAS, DIARMUID F.O’SCANNLAIN, WILLIAM A.

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FLETCHER, MARSHA S.B E R Z O N , J O H N N I E B .RAWLINSON, RICHARD R.CLIFTON, JAY S. BYBEE,CONSUELO M. CALLAHAN,MARY H. MURGUIA, PAUL J.WATFORD and JOHN B.OWENS) Appellees have notifiedthis Court that they have filed apetition for writ of certiorari withthe United States Supreme Court.Consequently, the April 15, 2020order to show cause is dismissedand the mandate remains stayedpending disposition of thatpetition. [11697751] (WL)[Entered: 05/21/2020 10:44 AM]

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Not Confidential

Memorandum of Telephonic Communication

Date: 6/23/2011

Attorney/Analyst: John Powers

File No.: 2011-1619

Other Party: Amy Bjelland, Esq.

Race:

Tel. No.: 602-615-8562

Title/Organization: Arizona Elections Director

Jurisdiction: State of Arizona

Subject: Chapter 105 (S.B. 1412) (2011)

Ms. Bjelland says that she and other members of theArizona Secretary of State’s office worked with SenatorShooter in drafting the proposed legislation. The reasonis that he had initially proposed some ideas that theoffice did not think were workable. For example, hefirst wanted to eliminate the vote by mail processentirely, then he wanted to ban people from bringing inten or more mail ballots at time. As a result, she is veryknowledgeable about the S.B. 1412 and the process bywhich it was adopted.

S.B. 1412 was targeted at voting practices inpredominantly Hispanic areas in the southern portionof the state near the Arizona border. Shooter andothers were mainly concerned about practices in SanLuis, which is a border town in Yuma County, but

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concerns were also raised by legislators aligned withthe Tea Party who represent the southern parts ofPima and Cochise Counties. The purpose is to preventillegal immigrants, persons with green cards who areineligible to vote, and other persons who are notregistered voters from participating in the electoralprocess.

The event that spurred the legislation involved adispute that arose in San Luis, a small city in YumaCounty located in what is called “south county,” on theborder with Mexico. A large majority of the populationof the city are Hispanics. Two Hispanic women whohad previously worked on campaigns together had abitter falling out. One of the women wrote a letter to alocal council member named David Luna, in which sheaccused the other woman of engaging in voter fraud,and admitted doing so herself when they workedtogether. Luna forwarded the complaint, which wasoriginally written in Spanish, to the Secretary ofState’s office, who forwarded it on to the FBI.

Both the FBI and the Secretary of State’s office lookedinto the matter and found no evidence of wrongdoing.The FBI eventually closed its investigation, while theSecretary of State monitored elections in Yuma Countyduring the 2009 election cycle, again finding nothing.However, the allegations were picked up by TeaPartiers and Republican candidates in the area, andthe issue received a lot of press attention.

She says that she does not know how widespread theproblem is, but in her opinion “it is part of life in SanLuis of how things have been run for years.” She thinksthe problem may result “from the different way that

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Mexicans do their elections.” She says that there iscorruption in the government and the voting process inMexico, and that people who live close to the border aremore impacted by that. She grew up in Tucson, andwas told growing up that you have to be careful inMexico because you cannot trust their government theway you can trust the United States government.These problems may have crossed the border.

The photo identification requirement was SenatorShooter’s idea. His understanding is that politicalmachines fill their car trunks with ballots and thentake them to the county recorder’s office. The photoidentification provision will prevent people frombringing in “buckets full of ballots” because individualswill be accountable and possibly prosecuted if theyviolate the law. She notes that this piece will be harderto manage from a procedural perspective, because it isa significant change from current practice.

The procedure for posting on the Secretary of State’swebsite was created her office as a way of placatingSenator Shooter. He wanted to ban the processentirely, but the Secretary of State’s office maintainedthat it wanted to accumulate evidence that voter fraudwas occurring before taking that step. This way, theSecretary of State can track this information officiallyand it can be determined whether or not mail ballotfraud is a problem that needs to be addressed.

Many in the Secretary of State’s office were worriedabout the Section 5 review of S.B. 1412. She wasworried that Senator Shooter may have “bit off morethan he can chew.” She asks if the Department ofJustice can preclear part of the bill, or it has to review

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everything together, to which I respond different votingchanges can receive different determinations.

The Secretary of State would have to approve rulesregarding the process for retaining information fromthe person’s photo identification as part of the recordsof the voting location. The Secretary of State does not,however, have to approve rules related to whatinformation would be posted on its website onlinebecause it is just a report. She says that it has notdetermined what information will be on the reports,but says that the information will not be “personal.”

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ARIZONA ELECTIONPROCEDURES MANUAL

June 2014

Excerpts pp.185-186

Verification of Provisional Ballots

Time for Verification

Verify all provisional ballots for proper registrationwithin 10 calendar days after a general election thatincludes an election for a federal office and within fivebusiness days for all other elections.

The provisional ballot shall be counted if:

• the registration of the voter is verified and thevoter is eligible to vote in the precinct, and

• the voter’s signature does not appear on anyother signature roster for that election, and

• there is no record that the voter voted early forthat election.

If a signature roster or early ballot informationindicates that the person already voted in that electionthe provisional ballot for that person shall:

• remain unopened,

• not be counted, and

• be retained in the same manner as voted ballots.

The ballot shall remain unopened and shall not becounted if:

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• the voter is not registered to vote, or

• the voter is in the wrong precinct/voting area, or

• the voter has not produced sufficientidentification, or

• the voter’s signature does not match thesignature on his/her voter registration form, or

• the voter voted their early ballot.

The County Recorder’s office shall create a provisionalballot record for the voter that contains the followinginformation:

• provisional ballot receipt number

• name of voter

• precinct where provisional ballot was voted

• provisional ballot status

• provisional ballot status reason

• address (optional)

• date of birth (optional)

• political party (optional)

This information will be used for online verification ofa voter’s provisional ballot. All provisional ballots forthe election must be processed before posting this dataon the Internet. The information shall be available tothe public online for one month after posting.

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Rejection Reason Code

The rejection reason code is determined at the CountyRecorder’s office. The rejection reasons are:

• not registered

• no ballot in envelope

• registered after 29-day cut-off

• no signature

• insufficient/illegible information

• signature does not match

• wrong party

• outside jurisdiction ballot

• voter challenge upheld

• voted in wrong precinct

• voted and returned an early ballot

• proper identification not provided by deadline

• administrative error

• not eligible

• other (please specify)

[ARS § 16-584(E)]

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Excerpts p.221

Additional Reporting

In addition to the general election canvass, the countyshall submit additional reports to the Secretary ofState at the time they are certifying their generalelection results. Each report shall include statistics forthe federal primary and general elections. The reportsare the Provisional Ballot Reporting, AccessibilityReport, Voter Education Report, and Poll WorkerTraining Report.

Provisional Ballot Reporting

With respect to the voter registration of each county,the following information will be collected to measurecompliance performance and reported to the Secretaryof State (see Provisional Ballot Report on pg. 368):

• The number of provisional ballots in eachprecinct

• The number of voters in each precinct

• The number of provisional ballots that wereverified and counted in each precinct

• The number of provisional ballots not counted ineach precinct and the reason for not counting,such as:

1. Not registered

2. Wrong precinct

3. Not eligible to vote

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• Whether the uniform procedures were followedfor determining whether a provisional ballot iscounted or not counted

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June 10, 2016

United States District Court for the District ofArizona

Feldman, et al. v. Arizona Secretary of State’sOffice, et al.

Case No. 16-1065-PHX-DLR

Expert Report of Jonathan Rodden, PhD

737 Mayfield Avenue Stanford, CA 94305

/s/ Jonathan RoddenJonathan Rodden, PhD

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I. SUMMARY

I have been engaged by counsel for the Plaintiffs inthe above-referenced case, who have asked me toexamine the impact of the allocation of polling locationsin the 2016 presidential preference election (“PPE”) inMaricopa County. I have also been asked to evaluateArizona’s policy of not counting ballots that are cast ina precinct other than the one to which the voter wasassigned (“out-of-precinct provisional ballots” or“out-of-precinct voting”), and to assemble informationabout the race, age, place of residence, andpartisanship of those whose ballots are not counted dueto out-of-precinct voting. Finally, I have been asked toexamine possible explanations for Arizona’s unusuallyhigh rates of uncounted provisional ballots in recentelections, paying special attention to changes in pollinglocations and other aspects of election administration,and to explore implications of recent confusion aboutpolling locations in the 2016 PPE for future generalelections.

In this report, I demonstrate that Arizona is theleader among U.S. states in uncounted provisionalballots because of problems with electionadministration related to the locations of precincts andpolling locations and the rules for counting ballots.Voters must invest significant effort in order tonegotiate a dizzying array of precinct and polling placeschemes that change from one month to the next.Further, Arizona’s population is highly mobile andresidential locations are fluid, especially for minorities,young people, and poor voters, which furthercontributes to confusion around voting locations. By

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frequently moving and consolidating polling locationsand sometimes shifting to temporary “vote centers,”Arizona’s election administration, especially inMaricopa County, has imposed significant costs onthose desiring to participate on Election Day. Specificfindings can be summarized as follows:

- 22 percent of voters visiting a polling place inArizona in the 2012 general election were askedto cast a provisional ballot, and over 33,000 ofthese—more than 5 percent of all in-personballots cast—were rejected. The provisionalvoting rate was 18 percent in 2014. No otherstate rejects a larger share of its in-personballots.

- Arizona rejected 11,000 ballots that it classifiedas out-of-precinct in 2012, and 3,500 in 2014. Noother state comes close to this rate of rejectedout-of-precinct ballots.

- Rejected out-of-precinct provisional ballots aremost prevalent in the relatively urban counties,especially Maricopa and Pima.

- In Maricopa County, many of the ballots thatwere classified by the election administration as“out-of-precinct” were cast by voters who wereregistered in and had official addresses in theprecinct where they tried to vote. These voterswere evidently falsely disenfranchised. In 2008,the number of such voters was 2,309, and in2012 it was 2,645. As a share of in-person voters,the numbers are similar in the mid-term yearsof 2010 and 2014.

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- The rate at which in-person ballots arediscarded under these circumstances (i.e.,“misclassified out of precinct”) is 80 percenthigher for Hispanics, 34 percent higher forAfrican Americans, and 26 percent higher forNative Americans than for whites.

- However, if we focus only on the “true”out-of-precinct votes (i.e., those instances wherevoters were not falsely disenfranchised), the rateis 131 percent higher for Hispanics, 74 percenthigher for African Americans, and 39 percenthigher for Native Americans than whites.

- Out-of-precinct votes are substantially morelikely to be cast by young people. They are alsomore likely to be cast by people who live inneighborhoods characterized by large numbersof renters and individuals who frequentlychange addresses.

- The rate of out-of-precinct voting was 65 percenthigher for Democrats than Republicans inMaricopa County, and 56 percent higher in PimaCounty.

- Most out-of-precinct votes in Maricopa Countyare cast very close to the assigned polling place.One quarter of out-of-precinct voters cast ballotsin polling places that are actually closer to theirhome than their assigned polling place.

- Many polling places are located directly onprecinct boundaries, and multiple polling placesare often clustered together, sometimes even inthe same building. Voters living further from

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their polling place, and voters living in closeproximity to multiple polling places, are morelikely to cast invalid ballots.

- Hispanics and Native Americans are more likelyto live further from their assigned polling places,and Hispanics are more likely to live inproximity to multiple proximate polling places towhich they are not assigned.

- Residents of Phoenix are more likely to castout-of-precinct ballots than residents of othercities in Maricopa County.

- Changes in polling place locations are associatedwith higher rates of out-of-precinct voting.African Americans and Hispanics aresubstantially more affected by this than whites.In particular, the impact of precinctconsolidation, while statistically significant forall groups, is more than twice as large forHispanics and African Americans as fornon-Hispanic whites.

- The number and locations of polling places inthe 2016 presidential preference election createda large “shock” to the cost of voting for everyonein Maricopa County, but the costs were largerfor African Americans and Hispanics.

All of these facts indicate that the recent difficultieswith the temporary move to voting centers in MaricopaCounty during the 2016 PPE and May 17 SpecialElection will only reinforce and likely magnify thepersistent misunderstandings that lead to unusuallyhigh rates of uncounted in-person votes in Maricopa

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County specifically and Arizona generally. Further, thesudden move from 724 assigned polling places to 60“vote centers” is in keeping with the broader historicaltrends in Arizona election administration: it imposessignificant costs on voters, and as with the otheraspects of election administration covered in the report,these costs fall disproportionately on minorities.

II. QUALIFICATIONS

I am currently a tenured Professor of PoliticalScience at Stanford University and the founder anddirector of the Stanford Spatial Social Science Lab—acenter for research and teaching with a focus on theanalysis of geo-spatial data in the social sciences.Students and faculty members affiliated with the Labare engaged in a variety of research projects involvinglarge, fine-grained geo-spatial data sets includingindividual records of registered voters, Census data,survey responses, and election results at the level ofpolling places. Prior to my employment at Stanford, Iwas the Ford Professor of Political Science at theMassachusetts Institute of Technology. I received myPh.D. from Yale University and my B.A. from theUniversity of Michigan, Ann Arbor, both in politicalscience. A copy of my current C.V. is included asAppendix B.

In my current academic work, I conduct research onthe relationship between the geographic location ofdemographic and partisan groups, the drawing ofelectoral districts, and patterns of politicalrepresentation. I have published papers on politicalgeography and representation in a variety of academicjournals including Proceedings of the National Academy

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of Science, American Economic Review Papers andProceedings, the Journal of Economic Perspectives, theVirginia Law Review, the American Journal of PoliticalScience, the British Journal of Political Science, theAnnual Review of Political Science, and the Journal ofPolitics. One of these papers was recently selected bythe American Political Science Association as thewinner of the Michael Wallerstein Award for the “bestpaper on political economy” published in the last year.I have recently written a series of papers, along withmy co-author, Jowei Chen, using automatedredistricting algorithms to assess partisangerrymandering. This work has been published in theQuarterly Journal of Political Science and Election LawJournal, and featured in more popular publications likethe Wall Street Journal, the New York Times, andBoston Review. I am currently writing a book on therelationship between political districts, the residentialgeography of social groups, and their politicalrepresentation in the United States and other countriesthat use winner-take-all electoral districts.

I have expertise in the use of large data sets andgeographic information systems (GIS) to analyzeaspects of political representation. I have developed anational data set of geo-coded precinct-level electionresults that has been used extensively in policy-oriented research related to redistricting andrepresentation.1 I have worked extensively with Censusdata from the United States and other countries.

1 The dataset can be downloaded at http://projects.iq.harvard.edu/eda/home. The data can be visualized in an interactive webmap, available at http://atlas.esri.com/Atlas/VoterAtlas.html.

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I have been accepted as and testified as an expertwitness in four recent election law cases. First, I havetestified in two cases related to redistricting: Romo v.Detzner (2012-CA-000412 in Florida Circuit Court,Leon County), and League of Women Voters of Florida,et al. v. Detzner, et al. (2012-CA-002842 in FloridaCircuit Court, Leon County). More recently, I haveoffered expert testimony in a case related to Section 2of the Voting Rights Act: Missouri State Conference ofthe National Association for the Advancement ofColored People, et al.v. Ferguson-Florissant SchoolDistrict and St. Louis County Board of ElectionCommissioners (Civ. No. 14-2077) in the United StatesDistrict Court for the Eastern District of Missouri.Finally, I testified in Barbara H. Lee, et al. v. VirginiaState Board of Elections, et al. (Case No. 3:15-CV-357)in the United States District Court for the EasternDistrict of Virginia. I am being compensated at the rateof $500/hour for my work in this case.2

III. PRECINCTS AND THE COSTS OF VOTINGIN ARIZONA

For busy citizens with jobs, communityresponsibilities, and children and parents to care for,

2 I was assisted in my analyses by Bradley Spahn, who is a Ph.D.student in the political science department at Stanford, and byNicholas Eubank, who is a Ph.D. student in the Graduate Schoolof Business at Stanford. Both were compensated by Plaintiffs’counsel at a rate of $200/hour and $140/hour, respectively, for theirwork. I reviewed and approved of all of their work. In my work asa political scientist, I typically rely upon the work of students likeMr. Spahn and Mr. Eubank to assist me with the type of analysespresented in this report in the same manner.

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voting in primaries, general elections, and localelections has a cost. Given the low probability that anyone individual’s vote will affect the outcome of anelection or the direction of public policy, rationalindividuals often make the calculation that the subtlecosts of voting—updating one’s registration aftermoving to a new apartment, obtaining informationabout the correct polling place, arrangingtransportation on Election Day—are higher than thebenefits of voting, even among individuals who aremotivated by an interest in public policy, the desire tobe seen by themselves or others as good citizens, or byintrinsic motivations like patriotism, duty, and civicpride.

This so-called “calculus of voting” has been the focusof political science research since the classic work ofAnthony Downs.3 A central conclusion is that when thecosts exceed the benefits many citizens will abstainfrom voting. Like dieting or quitting smoking, manyvoters report the desire and intention to vote, butactual turnout falls short of these reported intentions.Political scientists have discovered that even seeminglysmall changes to the costs of voting can make asubstantial difference in turnout. A generation ofresearch on behavioral economics suggests that verysmall changes in incentives, like the placement ofhealthy foods in a cafeteria or the choice architecture

3 Anthony Downs, 1957, “An Economic Theory of Political Actionin a Democracy,” Journal of Political Economy 65(2): 135-150. Seealso William Riker and Peter Ordeshook, 1968, “A Theory of theCalculus of Voting,” American Political Science Review 62(1):25-42.

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for retirement plans, can have surprisingly large effectson behavior.4 Likewise, political science research showsthat very consequential changes in the cost of votingare often induced by seemingly mundane decisions ofelection administrators.5 Above all, recent research hasdemonstrated that changes in polling locationsassociated with precinct consolidations have asubstantial effect on turnout.6 Voting is a habit andcustom, and the more routinized the process, the lesscostly it is for voters. A sudden unanticipated change inpolling location introduces a shock to the cost of voting,especially for voters with lower levels of information.7These costs include not only the travel cost of getting tothe polling place, but more importantly, the “searchcosts” associated with obtaining information about thenew polling place and locating it.8

4 See, for instance, Richard Thaler and Cass Sunstein, 2008,Nudge: Improving Decisions about Health, Wealth, and Happiness.Yale University Press.

5 See, for instance, Barry Burden and Jacob Neiheisel, 2013,“Election Administration and the Pure Effect of Registration onTurnout,” Political Research Quarterly 66(1): 77-90.

6 John McNulty, Conor Dowling, and Margaret Ariotti, 2009,“Driving Saints to Sin: How Increasing the Difficulty of VotingDissuades Even the Most Motivated Voters,” Political Analysis17(4): 435-455; Henry Brady and John McNulty, 2011, “Turningout to Vote: The Costs of Finding and Getting to a Polling Place,”American Political Science Review 105(1): 115-134. 7 Brady and McNulty (2011), op cit.

8 Brady and McNulty (2011), op cit., McNulty, Dowling, and Ariotti(2009) op cit.

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Another important lesson from the academicliterature is that the benefits of voting are not uniformacross individuals in a community. For some people, animportant part of the benefit of voting is experiential:some voters derive meaning from the experience ofcommunity membership and participation in civic lifeassociated with in-person voting on Election Day. Thussome Arizona voters choose not to register for thePermanent Early Voting list, and a large number ofthose receiving ballots in the mail choose not to mailthem and instead show up at the polling place onElection Day to cast their vote.

Likewise the costs of voting also vary a great dealacross individuals. Above all, the cost of voting in theUnited States can be substantially higher forlow-income and young renters who frequently movefrom one apartment to another, requiring frequentinteraction with election administrators to update theirregistration. An unanticipated change in polling placeor unanticipated long lines on Election Day could havean especially large impact on the working poor, whotypically have very little flexibility in their work day,and must vote during a narrow window in the morningor evening. In metropolitan areas like Maricopa andPima Counties, census data reveals that minorities arefar more likely than whites to find themselves in thiscategory.

The United States is one of the most politically andfiscally decentralized countries in the world, whichadds considerable complexity to the task of electionadministration that often translates into higher costsfor voters. Because lower-level governments administer

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federal elections, and county-level administrators—especially in urbanized areas—must contend with anarray of overlapping city council districts, waterdistricts, justice of the peace districts, school districts,state legislative districts, and Congressional districts,precincts must be created, and ballots printed, so thatthe residential address of every voter is connected tothe right bouquet of local elected offices. This has led tothe creation of precincts or voting tabulationdistricts—small, geographically compact groups ofhouseholds with the same bouquet of localjurisdictions—and these are often associated with asingle polling location.

Arizona law further complicates this process bypermitting each county to choose, in each election,whether to run the election in their district under a“vote center” model, where every voter in the countycan vote at any polling location in the county in whichthey reside, or a precinct-based model, under whicheach voter is assigned to a particular precinct. Somecounties, like Maricopa, switch back and forth betweena vote center model and a precinct-based model fromone election to another throughout the year. Forelections in which a precinct-based system is used, theArizona Secretary of State’s Office has interpretedArizona law to require the rejection of the entirety ofany ballots cast in a precinct other than the one towhich the voter was assigned, even if a “vote center”model was in effect only a few months earlier. Suchballots are often referred to as “out-of-precinct” ballotsand, as discussed further in this report, a substantialnumber of otherwise eligible Arizona voters are

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disenfranchised in each election as a result of thispolicy.

The policy of rejecting out-of-precinct provisionalballots wholesale generates a cost for voters—one thatfalls disproportionately on those who are more likely tobe renters with frequent address changes: in particularHispanic voters, African-American voters, and youngvoters. An individual who faces a rent increase in oneapartment complex and moves to another less than amile away might not be aware that she has moved intoan entirely new precinct--indeed, in many cases (asdiscussed further in this report) she may still liveclosest to her old precinct, but may now be required totravel further in order to vote in her new assignedprecinct. Among groups for whom residential mobilityis common, requirements of in-precinct-voting—as wellas the requirement that they update their registrationwith the state every time that they move even a shortdistance within a county—can make it substantiallymore burdensome to participate in elections. Not onlymust movers take the time to negotiate the procedurefor changing their registration address, they mustconstantly reeducate themselves about whether a votecenter or precinct-based system will be used for theelection at hand, and in the event of the latter, theshifting location of the correct polling place.

This class of issues is especially important inArizona. The 2006-2010 American Community Surveyincludes data on the length of time individuals havelived in the home or apartment in which they residedduring the data collection period. According to thesedata, almost 70 percent of Arizonans have changed

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their residential address in the decade from 2000 to2010.9 On this indicator of residential instability,Arizona is second only to Nevada. The same survey alsoasks respondents to report whether they have moved inthe last year: 21 percent of Arizonans reported doingso. On this metric the only states edging out Arizonawere North Dakota, Alaska, and Nevada.

The vast majority of those in Arizona who reportedmoving in the last year were actually moving withintheir current city of residence. On this metric—within-city moves in the last year—Arizona is again secondonly to Nevada. And the vast majority of thesewithin-city moves took place in Maricopa and Pimacounties.10

In addition to the movement of voters acrossprecinct boundaries, a further difficulty withprecinct-based voting is the movement of polling placesfrom one election to another. This can lead to highervoting costs, and hence lower turnout, not only forthose with unstable residential histories, but even forengaged, habitual voters residing for a long period oftime at one address.11

Polling places in some of Arizona’s most populouscounties change with great frequency. For instance,Maricopa instituted a major precinct consolidation

9 American Community Survey, 2006-2010 Five-Year Estimates.Accessed via the National Historical GIS (nhgis.org).

10 ACS 2006-2010 Five-Year Estimates, op cit.

11 McNulty, Dowling, and Ariotti (2009), op cit.

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right before the 2012 general election. There were 1143polling places for the general mid-term election inNovember 2010, 211 for presidential preferenceprimary in February of 2012, and then 724 later thatyear for the general presidential election.12

Moreover, for the general elections of 2008, 2012,and 2016 in Maricopa County, a completely differentprecinct system was used for the presidentialpreference primary than for the general election. Inorder to save money, as authorized by state law, theMaricopa County election administration used fewerpolling places in presidential preference primariesoccurring in the spring than in the general electionoccurring a few months later. The reasoning for thesmaller number seems to be driven by the increasingnumber of Arizonans making use of early voting, theobservation that turnout is sometimes sparse innon-competitive years like 2012, and above all, the factthat the number of voters eligible to vote in theprimary is much smaller than the number eligible tovote in the general election because many registeredvoters have not designated a party affiliation.

This money-saving practice imposes considerablecosts on voters, however. In 2008 and 2012, mostin-person voters in Maricopa County were required toobtain information about a different assigned pollingplace than the one they may have used in other recentelections. In 2008, the usual 1142 polling places were

12 http://recorder.maricopa.gov/pollingplace/pastpollingplacedetail.aspx

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consolidated to 403, and in 2012, the number wasreduced all the way 211.13

These efforts at reducing election administrationcosts unfortunately imposed new search and travelcosts on voters that wished to participate in theprimary. These temporary precinct consolidations alsogenerated confusion about the correct polling place inNovember, thereby suppressing turnout andcontributing to the problem of out-of-precinctprovisional ballots. In particular, there was a spike inthe number of out-of-precinct provisional ballots cast in2012, which corresponds to the major change inprecincts discussed above as well as the substantialchange in polling locations between the 2012 PPE and2012 general election. Of course there is no reason whyvotes in statewide, countywide, or presidential contestsmust be cast in a specific precinct in order to becounted. The only reason for rejecting out-of-precinctballots is the presence of local districted contests thatare printed on the same ballot. Recognizing this,Maricopa County followed the lead of counties likeYuma and Yavapai Counties and did away with therequirement of in-precinct voting in the March2016PPE, and instead set up 60 “vote centers” at whichany registered party affiliate could vote regardless ofresidential location. This vote center model assuaged,at least for one day, Maricopa’s persistent problem ofout-of-precinct provisional ballots. However, due tosome serious miscalculations about voter turnout, asdetailed below, it clearly increased the costs of voting

13 http://recorder.maricopa.gov/pollingplace/pastpollingplacedetail.aspx

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for many residents of Maricopa County, many of whomhad to wait in unconscionably long lines in order to casttheir ballots. Moreover, since vote centers will not beused in November 2016 and many future generalelections, this high-profile incident introducedconsiderable additional confusion into the already-muddy topic of where in-person voters should go onElection Day.

The 2016 PPE also aptly illustrates why the issue ofvoter confusion is further complicated in Arizona. Asnoted above, localities may switch between vote centerand precinct-based elections from election to election,sometimes (as with Maricopa County in 2016) evenwithin the same year.14 In such jurisdictions, voters arefaced with added difficulties in accurately identifyingtheir appropriate polling place. Not only are differentlocations usually used for vote centers as opposed toprecincts, the voter must become educated about thetype of election that is being administered in eachseparate elections cycle, and learn that while under avote center based model she can vote anywhere in thecounty, in a precinct-based model, she must identifyand cast her ballot at only one location.

Localities like Maricopa County, which houses thecity of Phoenix, add an even more confusingcomplication--there, Phoenix City elections are heldunder vote center models at entirely different locationsthan the Maricopa Elections. And, in the 2016 generalelection, both Maricopa County and the City of Phoenixwill be holding some elections at different locations

14 A.R.S. § 16:411.

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within Maricopa County on the same day. Additionalconfusion results in Maricopa as well because on May17, 2016—only two months after the disastrous votecenter interlude—Maricopa used another completelydifferent system of precincts and polling placesfeaturing 122 assigned polling places rather than the724 that it plans to use in August and November 2016.

Throughout the year, Arizona’s voters are receivingan array of sample ballots and new instructions aboutpolling locations for a variety of local, state, specialdistrict, and federal elections. In Maricopa County, newinformation arrives for elections held in (at least)March, May, August, and November. The informationoften arrives only weeks before Election Day. It is notsurprising that busy and information-constrainedvoters, for whom politics and elections are not centralactivities in life, might be unable to make the necessaryinvestment to wade through it all, choosing to abstain,or trying and failing to vote at the correct polling place.

One way around this problem in Arizona might beto sign up for the permanent early voting list.15 As

15 Because voting by absentee entails its own costs, it is not always aperfect alternative or substitute for voters who are unable to cast theirvote in person. In particular, there are significant information costsassociated with absentee voting and, often, require voters to alsonavigate a sometimes-confusing web of deadlines. Further, in Arizona,a ballot must arrive at the Recorder’s office by the close of the election.Thus, voters waiting until later in the election cycle to make theirvoting determinations may have no choice but to cast their vote inperson. Additionally, it is my understanding that a number of votersin Arizona may not have outgoing mail options which furthercomplicates the early voting process. See discussion in text regardingadditional problems with early voting.

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Table 1 shows, a growing number of registered votersare doing so. Since 2012, absentee ballots were sent toa little over half of registered voters in Arizona.However, as the number of ballots mailed out has beenincreasing, the share of those ballots actually returnedhas been steeply decreasing. Comparing presidentialelections, the share of ballots returned has fallen from94 percent in 2008 to 80 percent in 2012. For mid-termelections the rate at which absentee ballots arereturned has fallen from 77 percent in 2010 to 58percent in 2014.

While many of those who do not submit their ballotare making a choice to abstain, a large number are alsoshowing up to the polling place on Election Day, wherethey are asked to submit provisional ballots.16 Itappears that some voters view the early ballot as anabsentee option to be used in the event that they willnot be able to make it to a polling place on ElectionDay. It may also be the case that some voters havegrown mistrustful of the early voting process, giventhat the ballot can be rejected for reasons like improperor non-matching signature. The data in Table 1indicate that the rate at which submitted absenteeballots are rejected has been growing over time,reaching almost 1 percent by 2014. Some voters alsoworry about whether their mail-in ballot will actuallybe counted, especially those mailed as Election Day

16 For instance, the vote history indicators in an early 2013Maricopa voter file that was produced by the Democratic NationalCommittee, indicate that of those who showed up in person to votein the 2012 presidential election, almost one quarter were on thepermanent early voting list.

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approaches, since media reports have indicated thatsuch ballots are the last to be counted.

Table 1: Absentee Voting in Arizona

Year 2008 2010 2012 2014

Registeredvoters

3,441,141

3,502,743

3,725,362

3,802,786

Ballotssent out

1,308,030

1,410,083

1,920,746

2,060,603

Ballotssubmitted

1,223,936

1,084,665

1,542,855

1,193,537

Ballotscounted

1,217,109

1,076,402

1,530,465

1,182,149

Ballotsrejected

6,827 8,263 12,390 10,388

Missed deadline

1,611 2,944 4,107 3,312

No voter signature

3,041 3,692 5,256 4,268

Non- matching signature

1,645 1,125 2,051 1,563

Ballot returned in unofficial envelope

1 2 72 286

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Ballot missing from envelope

171 52 173 56

No resident address on envelope

0 0 122 0

IV. TURNOUT AND OUT-OF-PRECINCTVOTING IN ARIZONA

In sum, much of Arizona has an extremely mobilepopulation characterized by a high degree of residentialchurn, and its election administrators frequently alterthe location of polling places while (usually) insistingthat in-person votes can only be counted if voterssuccessfully cast their votes in the right place. Giventhe costs imposed by this confluence of factors, alongwith other shortcomings of election administration inArizona, it would not be surprising to see that Arizonahas unusually low rates of registration and turnoutamong its citizens and high rates of invalidout-of-precinct provisional ballots among thoseregistered voters who attempt to cast in-person votes.Moreover, it would not be surprising to see that theseproblems are especially pronounced among minoritygroups that are more likely to be among the workingpoor and more likely to have unstable residential

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histories.17 To examine these possibilities, let us nowturn to data on turnout and provisional ballots.

First, I demonstrate that Arizona’s turnout isindeed quite low relative to other states, especiallyamong minorities. Second, I demonstrate that Arizona’sproblem with uncounted provisional ballots is far worsethan other states. Third, I conduct an in-depth casestudy of out-of-precinct voting in Maricopa County,where I have been given access to rich individual-leveldata, showing that out-of-precinct provisional ballotsare cast far more frequently by minorities, youngpeople, and Democrats than would be expected giventheir share of voters. Finally, I extend this analysis totwo additional counties to provide an overall indicationof the implications of this practice in the rest of thestate: Pima and Coconino.

Arizona’s Turnout in Comparative Perspective

If the costs of voting are especially high due todistinctive features of election administration inArizona, we might expect to see that Arizona hasunusually low rates of registration and turnout, andunusually high rates of rejected ballots. Indeed this isthe case. As part of its Current Population Survey, theUnited States Census Bureau collects data onself-reported registration and voting after each general

17 According to the most recent five-year American CommunitySurvey, the poverty rate for African Americans is more than twicethat of whites, and for Native Americans it is more than threetimes higher. Rates of home ownership are more than twice ashigh for whites as blacks, and around 1.5 times higher for whitesthan for Hispanics and Native Americans.

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election, publishing estimates of registration andturnout by race and ethnicity in each state. These dataindicate that Arizona is one of the least successfulstates in registering its voters and eliciting votes ingeneral elections.

Figure 1 draws upon the November 2012 CurrentPopulation Survey and presents turnout in the 2012general election as a share of citizen voting-agepopulation.18 It demonstrates that Arizona was rankednear the bottom of all states (44th) in overall turnout.

The problem of low registration and electoralparticipation is especially pronounced among Arizona’sracial and ethnic minorities. Figure 2 displaysestimates of turnout among African Americans, andFigure 3 does so for Hispanics. Estimates areunavailable in states with very small minoritypopulations, and in each graph, observations arelimited to states where the group makes up at least twopercent of the citizen voting-age population.

18 I have chosen to present cross-state data from the most recentpresidential election since it featured the same hotly contestedpresidential race in all states. Turnout in mid-term elections isdifficult to compare across states since some states featureimportant gubernatorial and senatorial races that induce higherturnout, while other states do not. In fact, due to the advantagesof incumbency and the lopsided nature of partisan competition insome regions, mid-term general elections in some states featurealmost no competitive contests.

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Figure 1: Turnout as share of total citizenvoting-age population, 2012 general election,

according to Current Population SurveyNovember 2012

Figure 2 (below) reveals the striking fact thatturnout among African Americans in Arizona was only46 percent during a hotly contested presidentialelection where the same measure of African-Americanturnout was over 66 percent nationwide. Only Alaskahad a worse showing among its (very small) AfricanAmerican population.

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Figure 2: African-American turnout as share oftotal African-American citizen voting-age

population, 2012 general election, according toCurrent Population Survey November 2012

Figure 3 (below) reveals that Arizona is also amongthe laggards in turnout among citizen voting-ageHispanics. Its turnout rate of 39 percent is in thebottom third of all states. In contrast, the non-Hispanicwhite turnout rate in Arizona was 62 percent.

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Figure 3: Hispanic turnout as share of totalHispanic citizen voting-age population, 2012

general election, according to CurrentPopulation Survey November 2012

Out-of-Precinct Voting: Arizona in ComparativePerspective

Before taking a closer look at the relationshipbetween the unusual features of electionadministration in Arizona and the problem ofout-of-precinct voting, it is useful to see the big pictureof how Arizona compares with other states. Arizona isnot only among the states with the lowest levels ofelectoral participation, but among those who do

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attempt to cast ballots, Arizona has the dubiousdistinction of being the national leader in rejectingthose ballots as invalid. As with registration andturnout, this aspect of election administration has adisproportionate impact on minorities. Since Arizona’sproblems are not new, and they are not “normal” whencompared with other states, we must search foranswers in Arizona’s practices of electionadministration or characteristics of its population.

Perhaps the greatest change to the voting process inthe United States, ushered in by the Help AmericaVote Act of 2002, was the mandate to offer provisionalballots at all polling places for instances when theeligibility of a voter is in question. While this is aninvaluable failsafe to protect the franchise in light ofinevitable bureaucratic snafus or other misfortunes, ithas had some unintended consequences. Primarily, ina well-meaning effort to be conscientious, poll workersoften ask voters to fill out provisional ballots given anyquestion at all about eligibility. This increases theburden on the voter who has to endure the morelengthy process of casting a provisional ballot that mayor may not be counted, as well as other voters at thepolling place who are subjected to longer wait times inline.19

This issue has become especially difficult inArizona, which has become one of the nation’s leaders

19 See, e.g., Maricopa County Elections Dep’t, Provisional BallotsGeneral 2012 Presentation (Jan. 30, 2013) at 185 (noting costs ofprovisional balloting in terms of longer lines and losses in voterconfidence).

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in provisional voting. Figure 4 is drawn from datapresented in the 2012 Election and VotingAdministration Survey, published by the United StatesElection Assistance Commission (EAC) based on datacollected from a survey of state election administrators.It demonstrates that as a share of all ballots cast in the2012 general election, Arizona was second only toCalifornia in the use of provisional ballots.

Figure 4: Provisional ballots as a share ofballots cast in the 2012 general election

according to AEC report

Since a large share of Arizona voters cast their ballotsearly by mail, Figure 4 under-estimates the prevalenceof provisional ballots cast on Election Day in Arizona.

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Drawing on reports published for each general electionby the EAC, Figure 5 displays provisional ballots as ashare of all in-person ballots cast for each generalelection in Arizona since 2006. It shows thatprovisional ballots were in the range of 9 to 13 percentof all in-person ballots cast from 2006 to 2010, and thenexploded in the 2012 general election, comprising over22 percent of all in-person ballots cast. More than onein every five voters visiting a polling place in Arizonain 2012 was asked to cast a provisional ballot, and over33,000 of these—more than 5 percent of all in-personballots cast—were rejected. No other state rejected alarger share of its in-person ballots in 2012.

Figure 5: Provisional ballots as share of in-person ballots cast in

Arizona According to EAC reports

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Figure 5 also shows that in spite of much lowerturnout, the problem did not go away in the 2014mid-term election. On the contrary, the rate ofprovisional balloting was over 18 percent—easily thehighest among the 50 states. Since 2012, Arizona hasclearly become the national leader in both provisionalballots cast and especially in provisional ballotsrejected among in-person voters

Many of the other states with relatively largenumbers of provisional ballots are Western states that,like Arizona, have come to rely increasingly on votingby mail. This is because individuals who receive mail-inballots often show up at the polling place—whetherbecause they miss the mail-in deadline, misplace theballot, or prefer to vote in person—and electionadministrators use the provisional ballot process tomake sure that those voters do not vote twice. But, asin other states, such provisional votes are generallyeventually counted. Accordingly, the fact that so manyArizonans are on the vote by mail list cannot explainArizona’s unusually high number of rejected ballots.

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Figure 6: Rejected out-of-precinct ballots as ashare of in-person ballots cast according to

2012 EAC Report

What sets Arizona apart from other states is itspersistent problem with out-of-precinct voting. Figure6 displays out-of-precinct ballots as a share of all in-person ballots cast in the 2012 general election.Arizona is clearly in a class by itself, with almost11,000 rejected out-of-precinct provisional ballots in2012 and 3,500 in 2014. No other state comes close.This indicates that something is clearly going wrong inthe process through which election administrators:assign voters to polling places in precincts, inform themabout often-shifting locations in the weeks before theelection, inform those voters who arrive at t the wrong

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polling place about their correct polling location, andthen discard provisional ballots after the election. It issimply not plausible that 11,000 Arizonans stood inline to vote in 2012 and went to the trouble of castinga provisional ballot that they knew would not becounted.

Figure 7: Provisional ballots as a share of in-person ballots cast according to EAC reports,Arizona counties

The EAC also collects data from Secretaries of Stateon individual counties. Figure 7 zooms in on Arizona’s15 counties, displaying provisional ballots as a share ofall in-person ballots in each general election from 2008to the present. It demonstrates that provisional ballotsare especially common in Arizona’s three most

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populous counties, including Maricopa—where theyaccounted for around one in three in-person ballots castin 2012—as well as Pima and Pinal. Among the lesspopulous counties, provisional ballots as a share ofelection-day voting are relatively common in Coconino,Yuma, and Gila.

Figure 8: Total rejected ballots and out-of-precinct ballots as shares of in-person ballots

cast according to EAC reports, Arizonacounties

Figure 8 turns attention to only those provisionalballots that were rejected, as well as the sub-set ofballots rejected because of out-of-precinct voting. Thedashed line shows that rejected ballots have been most

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common in Maricopa County, as well as the lessurbanized counties of Apache, Coconino, Gila, andNavajo. Following the general pattern, Pima and Pinalhave relatively high rates of ballot rejection duringpresidential years, and lower but neverthelesssubstantial rates (around two percent) during mid-termelections.

Figure 8 also shows that out-of-precinct voting hasbeen most pronounced in the urbanized counties ofPima and above all Maricopa, where almost twopercent of all ballots are routinely invalidated due tovoters casting ballots at the wrong location. In thosetwo counties alone, almost 10,000 votes were thrownaway for this reason in the 2012 general election.Coconino has also experienced a problem without-of-precinct ballots, especially in presidentialelection years.

Who Votes in the Wrong Precinct? A Case Studyof Maricopa County

Since around three quarters of Arizona’s out-of-precinct votes are cast in Maricopa County, it is thenatural place to look for a deeper understanding of thephenomenon of out-of-precinct voting. I have receiveda list of the name and address of every voter inMaricopa County who cast a provisional ballot in thegeneral elections of 2008, 2010, 2012, and 2014,including a code that specifies the reason the voter wasasked to cast a provisional ballot, as well as anindicator for whether the ballot was ultimatelycounted. The data also include codes for the precinctwhere the provisional ballot was cast, as well as the

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precinct assigned by election administrators to thevoter’s registration address.

My analysis begins by simply mapping the rejectedout-of-precinct provisional ballots. Figure 9 uses thehousehold addresses of the 7500 individuals who castinvalid out-of-precinct ballots in the November 2012general election to produce a heat map that gets darkerin neighborhoods where there are clusters of out-of-precinct votes.20 Although the greater Phoenixmetropolitan area has a strikingly even populationdistribution compared with most U.S. cities, Figure 9reveals notable concentrations of invalid out-of-precinctballots, including a residential area just North of thePhoenix Sky Harbor Airport, a relatively low-densityresidential area just to the Southwest of the airport,downtown Tempe, the I-17 corridor, and the suburb ofGoodyear, and parts of Glendale, among others.

20 These addresses were geo-coded by a geo-coding service calledgeocod.io. I have selected this service because it is able to processlarge numbers of addresses quickly and efficiently. It is a regularpractice in my profession to use such services to geo-code. I haveused this service before and am familiar with and confident intheir work. I have taken sample data sets in which the truecoordinates are known, and contrasted the accuracy of theirestimates with those produced by other leading geo-codingservices. The differences in accuracy were minimal.

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Figure 9: Heat map derived from geocodedindividual out-of-precinct ballots cast in 2012

general election

It is possible to get a sense for the correlates ofout-of-precinct v