Page:Bowyer v. Ducey (CV-20-02321-PXH-DJH) (2020) Order.pdf/16

 (2002) (internal citations omitted). However, where the claims are state law claims, masked as federal law claims, Ex parte Young is inapplicable and the Eleventh Amendment clearly bars the suit. See Massey v. Coon, 865 F.2d 264 (9th Cir. 1989) (affirming dismissal where “on its face the complaint states a claim under the due process and equal protection clauses of the Constitution, [but] these constitutional claims are entirely based on the failure of defendants to conform to state law”); see also Pennhurst, 465 U.S. at 90 (“[W]hen a plaintiff alleges that a state official has violated state law” and “when a federal court instructs state officials on how to conform their conduct to state law, this conflicts directly with the principles of federalism that underlie the Eleventh Amendment.”). This is true whether the relief requested is “prospective or retroactive” in nature. Pennhurst, 465 U.S. at 106.

Here, Plaintiffs face a number of difficulties in their attempt to pierce Defendants’ sovereign immunity. Defendants argue that all of Plaintiffs’ allegations are actually state law allegations masked under federal law. Defendants point to numerous instances in Plaintiffs’ Complaint where Arizona state election law is relied on, including their catch-all fraud claims, which are entirely based on state law. The Eleventh Amendment clearly bars such claims. See Pennhurst, 465 U.S. at 106 (“On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.”).

However, even assuming that Plaintiffs established that their claims are indeed independent federal claims, it is unclear what ongoing violation of federal law is being asserted. Plaintiffs allege Due Process and Equal Protection claims, along with a catch-all fraud claim, that arise from Defendants’ alleged failure to follow Arizona state election laws. (Doc. 1 at ¶¶ 106–120). These numerous alleged violations—related to alleged issues with signature verification, ballot duplication, and poll observation—concern past conduct. The relief requested—compelling the Governor to decertify the