The county claimed in a Sunday filing supporting its motion to dismiss that the tribe had failed to show standing, arguing that parens patriae standing requires a sovereign, such as a tribe, to bring claims on behalf of all of its members, not just a subset.
"The tribe does not seek to vindicate the rights of all members; it only seeks to vindicate the rights of the minority of its voters who vote early and in person," the county wrote.
The Pascua Yaqui tribe replied Monday, citing the 1982 Supreme Court case Alfred L. Snapp & Son, Inc. v. Puerto Rico. In that ruling, the tribe said, the court found that "a sovereign has standing to sue as parens patriae if a 'sufficiently substantial segment of its population' is injured by the challenged conduct."
The lack of in-person early voting on the reservation "makes participation in the election difficult, if not impossible, for many Yaqui voters," the tribe added, noting limited transit options to the closest early voting site.
The Pascua Yaqui tribe filed suit on Oct. 12, claiming that Pima County Recorder F. Ann Rodriguez is denying the reservation's more than 3,600 residents equal access to vote in violation of the Voting Rights Act.
The tribe is seeking to compel Rodriguez to install a ballot drop box and operate an early voting site on the reservation from Oct. 26 to 30, reinstating a site shuttered in 2018.
The county's Sunday filing also raises the Supreme Court's Purcell doctrine, which can discredit voting rights challenges brought close to Election Day.
The tribe "fails to justify its decision to wait until three weeks before the November 3, 2020 general election to ask a court to reinstate an on-reservation early-voting site that was eliminated more than two years ago," the county argued.
The tribe countered Monday that the court will not run afoul of Purcell if it "narrowly tailors its injunction to the circumstances at issue without altering existing election laws or rules."
Regardless, the tribe claimed, the county's timing concerns are "self-inflicted," as the tribe "made continued good faith attempts to work with [the] defendant on this issue and only sought judicial relief as a last resort."
The Pascua Yaqui's complaint accuses Rodriguez of violating Section 2 of the Voting Rights Act, which prohibits voting qualifications that result in the "denial or abridgment of the right of any citizen of the United States to vote on account of race or color."
Removing the reservation's early voting location has created the requisite "disparate impact" on Native American voters, according to Tuesday's motion, leaving them "about three to four times more distant from early voting sites than whiter areas of the Tucson region."
In written statements and letter correspondence with the tribe, Rodriguez has cited factors including low voter turnout at the Pascua Yaqui site before it was shuttered, as well as funding limitations.
Counsel for the county did not immediately respond to a request for comment Tuesday.
In comments Tuesday to Law360, Jonathan Diaz of the Campaign Legal Center, counsel for the tribe, said that a hearing on its motion for preliminary injunction was continuing and that the court had signaled that it will decide on the injunction motion and motion to dismiss together.
"We have made clear to the court the urgency of the situation and the timeline with early voting having already begun in parts of Arizona," Diaz said. "We're hopeful this can be resolved this week so that the early voting site can be set up this week."
The tribe is represented by Danielle Lang, Jonathan Diaz and Aseem Mulji of the Campaign Legal Center; Patty Ferguson-Bohnee of the Indian Legal Clinic at Arizona State University; and Mary R. O'Grady and Joshua D. Bendor of Osborn Maledon PA.
The Pima County Recorder is represented by Eric H. Spencer, Brett W. Johnson, Colin P. Ahler, Ryan J. Regula and Derek C. Flint of Snell & Wilmer LLP.
The case is Pascua Yaqui Tribe v. Rodriguez, case number 4:20-cv-00432, in the U.S. District Court for the District of Arizona, Tucson Division.
--Editing by Peter Rozovsky.
For a reprint of this article, please contact reprints@law360.com.
