similarly seeks to alter past conduct. Plaintiffs have not identified an ongoing violation to enjoin. In short, “Plaintiffs are seeking to undo what has already occurred, as their requested relief reflects.” See King v. Whitmer, 2020 WL 7134198, at *5 (E.D. Mich. Dec. 7, 2020).
The Eleventh Amendment bars the injunctive relief sought.
- D. Laches
Defendants also argue that the doctrine of laches bars Plaintiffs’ claims. Laches will bar a claim when the party asserting it shows the plaintiff unreasonably delayed in filing the action and the delay caused prejudice to the defendant or the administration of justice. Danjaq LLC v. Sony Corp., 263 F.3d 942, 951–52 (9th Cir. 2001) (noting that laches requires a “defendant[] prove both an unreasonable delay by the plaintiff and prejudice to itself”). Laches can bar untimely claims for relief in election cases, even when the claims are framed as constitutional challenges. Soules v. Kauaians for Nukolii Campaign Comm., 849 F.2d 1176, 1181 (9th Cir. 1988); U.S. v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 9 (2008) (“[A] ‘constitutional claim can become time-barred just as any other claim can.’”) (quoting Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273, 292 (1983)).
Plaintiffs filed their Complaint and request for TRO seeking to “de-certify” the election results on December 2, 2020, nearly a month after the General Election on November 3, 2020. Plaintiffs conclusively argue that they waited this long because they “could not have known the basis of their claim, or presented evidence substantiating their claim, until after the election.” (Doc. 44 at 9). They further state that, because “Arizona election officials and other third parties did not announce or publicize their misconduct, and in fact prevented Republican poll watchers from observing the ballot counting and handling, it took Plaintiffs additional time post-election to gather the fact and expert witness testimony presented in the Complaint.” (Id.) During oral argument, Plaintiffs’ counsel repeatedly stated that the alleged fraud related to the Dominion voting machines
“irregularities” with the voting machines (Id. at ¶¶ 50–52); and certification of the Dominion voting system on November 18, 2020 (Id. at ¶ 53).
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