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Grayeyes v. Cox

United States District Court, D. Utah, Central Division

August 9, 2018

WILLIE GRAYEYES, an individual, and TERRY WHITEHAT, an individual, Plaintiffs,
v.
SPENCER COX, as Lieutenant Governor of the state of Utah; JOHN DAVID NIELSON, as Clerk/Auditor of San Juan County, a political subdivision of the state of Utah; KENDALL G. LAWS, as Attorney of San Juan County, a political subdivision of the state of Utah; COLBY TURK, as Deputy Sheriff in the Sheriff's Office of San Juan County, a political subdivision of the state of Utah; and WENDY BLACK, an individual, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING [13] PLAINTIFF GRAYEYES'S MOTION FOR PRELIMINARY INJUNCTION

          David Nuffer, United States District Judge

         Plaintiff Willie Grayeyes (“Plaintiff Grayeyes”) filed a motion for preliminary injunction (“Motion”) seeking restoration of Plaintiff Grayeyes's right to vote and status as a candidate for San Juan County Commissioner in District 2 in the November 2018 general election.[1] The parties briefed the Motion on an expedited briefing schedule. Defendants filed their responses on July 11, 2018.[2] Plaintiff filed a reply.[3] After expedited discovery was conducted, parties also submitted supplemental memoranda on July 27, 2018.[4] Defendants Colby Turk, [5] Kendall Laws, [6] Wendy Black, [7] and Spencer Cox[8] were subsequently dismissed as parties. San Juan County Clerk John David Nielson (“Defendant Nielson”) is the only remaining defendant at this point in time.

         On August 7, 2018, the parties presented oral argument at a hearing (“Preliminary Injunction Hearing”) on the Motion.[9] This is an interim order for injunctive relief pending trial. It is not a final decision.

         Contents

         FACTS ............................................................................................................................................ 3

         DISCUSSION ................................................................................................................................. 9

         Preliminary Injunction Standard ......................................................................................... 9

         Plaintiff Grayeyes Will Suffer Irreparable Harm in the Absence of Preliminary Relief. . 10

         The Balance of Equities is in Plaintiff's Favor. . ............................................................... 10

         The Injunction is in the Public Interest. . ........................................................................... 11

         Plaintiff is Likely to Succeed on the Merits ...................................................................... 11

         Challenge to Candidacy ........................................................................................ 12

         Challenge to Voter Status ..................................................................................... 13

         Use of Voter Challenge to Challenge Candidacy ................................................. 15

         Other Acts without Statutory Authority ................................................................ 15

         Plaintiff Grayeyes Has Shown a Strong Likelihood of Success ........................... 16

         No Bond is Required. . ....................................................................................................... 17

         ORDER AND PRELIMINARY INJUNCTION .......................................................................... 18

         FACTS[10]

         1. In 2012, Plaintiff Grayeyes was certified to run as the Democratic Party nominee for a seat on the San Juan County Commission.[11]

         2. At that time, County Clerk Norman Johnson e-mailed Plaintiff Grayeyes to confirm his residential address.[12] Mr. Johnson did not take any further action after Plaintiff Grayeyes provided his physical address.

         3. In 2016, Plaintiff Grayeyes renewed his voter registration in San Juan County. County Clerk John Nielson (“Defendant Nielson”) approved the voter registration.[13]

         4. On March 9, 2018, Plaintiff Grayeyes submitted a Declaration of Candidacy to run in the 2018 election for San Juan County Commissioner in District 2.[14]

         5. On March 20, 2018, at 4:30 p.m., Wendy Black e-mailed Defendant Nielson (the “March 20th Email”), stating:

I would like to formally challenge the validity of Willie Grayeyes being able to run for San Juan County, Utah Commissioner. It has been brought to my attention that he may live outside of the county and state of Utah. My concern is as a challenger for this commission seat.[15]

         6. Either later that day or the next morning, Ms. Black delivered a printed document that contained the same content as her prior e-mail and her handwritten signature (the “March 20th Challenge).[16]

         7. On March 21, 2018, Defendant Nielson emailed San Juan County Sheriff Rick Eldredge, suggesting that the Sheriff send someone to investigate Plaintiff Grayeyes's residence:

Last night Wendy Black brought in a formal complaint challenging Willie Grayeyes [sic] residence. Back in 2012, it appears that there was a question of Willie Grayeyes [sic] address . . . It appears that Willie verified to Norman where he lived, but it doesn't look like anyone went and verified that the information was correct. It might not hurt to send someone out there to look, take pictures, or ask around.[17]

         8. Sherriff Eldredge assigned Deputy Colby Turk to do so on or about March 23, 2013.[18]

         9. On March 22, 2018, Defendant Nielson emailed Derek Brenchley, Assistant Deputy Director of Elections, about the challenge received from Ms. Black:

[W]e had a person challenge a candidate's declaration. They don't think that the candidate lives in Utah. Could we talk about what that process looks like?[19]

         10. Mr. Brenchley provided the statutory references for a candidate challenge and for the first time raised the statute governing voter registration challenges.[20]

         11. During their email correspondence, Defendant Nielson responded, “[Ok], so I think the challenge is more towards the voters [sic] residency . . . .”[21]

         12. Mr. Brenchley advised Defendant Nielson that there is no clear linkage between a voter challenge and candidate challenge, though the lack of voter status may be a barrier to taking office:

If you sustain the challenge against a candidate, the code does not provide much guidance on how to proceed. As far as I know the code does not establish a formal process to remove a candidate from the-ballot (other than disqualifying them due to failure to file financial disclosures). It is possible that the candidate could still be on the ballot, but they would be ineligible to hold the office if they are elected, thus creating a vacancy.[22]

         13. March 22, 2018 at 4:30 p.m. was end of the 48-hour deadline for Defendant Nielson to make a decision on Mrs. Black's candidacy challenge under Utah Code Ann. § 20A-9-202. He did not do so.

         14. On March 24, 2018, the San Juan Democratic Party nominated Plaintiff Grayeyes as the Democratic Party candidate for the 2018 election.[23]

         15. On March 28, 2018, Defendant Nielson mailed a letter (“March 28th Letter) to Plaintiff Grayeyes stating:

[Y]our right to vote and/or hold office in San Juan County Utah has been challenged by Wendy Black of Blanding, Utah. The basis of this challenge is that your primary residence is not in San Juan County, Utah, rather the State of Arizona . . . . Under Utah Code, Title 17-6-1, one of the requirements for a person filing a declaration of candidacy for a county shall; [sic] have been a resident for at least one year of the county in which he/she seeks office. Utah Code 20-A-3-202.3 (3)(c) states that the challenged party is allowed the opportunity to submit information to refute the challenge . . . . Your response and evidence to this challenge would be greatly appreciated as soon as possible.[24]

         16. The March 28th Letter was not emailed to Plaintiff Grayeyes even though Defendant Nielson had Plaintiff Grayeyes's email address on file from Mr. Johnson's 2012 email.

         17. On April 10, 2018, Plaintiff Grayeyes informed Defendant Nielson via email that he received the March 28th Letter.[25]

         18. On April 13, 2018, Defendant Nielson e-mailed Ms. Black a voter registration challenge form and asked her to fill it out. Ms. Black responded that she will do it “for the county.”[26]

         19. On April 16, 2018, Ms. Black met with Defendant Nielson to turn in the completed voter registration challenge form (the “April 16th Challenge”), which she backdated to March 20, 2018, and which Defendant Nielson signed, affirming that it was sworn before him on March 20, 2018.[27]

         20. On April 19, 2018, Natalie Callahan, Communications Coordinator for San Juan County, issued a press release announcing that Plaintiff Grayeyes's candidacy was under investigation and may result in criminal charges.[28] The press release does not mention any voter qualification issues. Defendant Nielson was allowed to review and comment on the press release before it was issued.[29]

         21. Between April 19 and May 3, 2018, Plaintiff Grayeyes made several requests to Defendant Nielson that he provide a copy of the challenge received against Plaintiff Grayeyes and information related to Defendant Nielson's investigation of the challenge.[30] Defendant Nielson did not provide any documents, including the March 20thEmail, March 20th Challenge, and April 16th Challenge.

         22. On May 3, 2018, Plaintiff Grayeyes sent a GRAMA request to Defendant Nielson, requesting copies of all documents related to any challenge against Plaintiff Grayeyes as a voter or candidate for elected office in San Juan County.[31]

         23. On May 9, 2018, Defendant Nielson mailed Plaintiff Grayeyes a letter stating his decision that Plaintiff Grayeyes was not eligible to register to vote because he did not have a “principal place of residence” within San Juan County, Utah.[32]

         24. On May 10, 2018, Defendant Nielson sent Plaintiff Grayeyes another letter revoking his declaration of candidacy:

In light of the outcome of the voter challenge against you, I am now aware that you do not meet the requirements of a candidate for office under Utah Code Ann. § 17-16-1 because you are not a registered voter and have not resided for at least one year in the district in which you seek office. Therefore, at this time I can no longer accept your declaration of candidacy pursuant to Utah Code Ann. § 20A-2-201(4).[33]

         25. That same day, Defendant Nielson also sent a letter to the Democratic Party that Plaintiff Grayeyes did not meet the residency requirements to be a registered voter and that the Democratic Party had until August 31, 2018, to certify the name of a replacement candidate.[34]

         26. On May 24, 2018, Defendant Nielson provided incomplete documents in response to the May 3rd GRAMA request.[35] Defendant Nielson failed to include the March 20th Email and March 20th Challenge.

         27. On June 20, 2018, Plaintiffs filed their Complaint.[36]

         28. On June 26, 2018, the San Juan County Primary Election was held.

         29. On June 26, 2018, Plaintiff Grayeyes filed a motion for preliminary injunction and related relief.[37]

         30. August 30, 2018 is the last date that the Utah Democratic Party may seek to designate a replacement candidate under Utah Code Ann. § 20A-1-501(1)(c)(iii).

         31. The Lt. Governor is required to certify the ballot under Utah Code Ann. § 20A-9-701 by August 31, 2018.

         32. In-person early voting for the general election will take place between ...


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