Page:Bowyer v. Ducey (CV-20-02321-PXH-DJH) (2020) Order.pdf/6

 1996). In contrast, when a court evaluates a factual challenge to jurisdiction, a court is “free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Safe Air for Everyone, 373 F.3d at 1039 (“In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.”).


 * 1. Elections and Electors ClauseClauses [sic]—Count One

Plaintiffs allege in Count One that Defendants violated the Elections and Electors Clauses and 28 U.S.C. § 1983 by, among other things, losing or destroying absentee ballots, and/or replacing those ballots with “blank ballots filled out by election workers, Dominion or other third parties” sending thousands of absentee ballots to someone besides the registered voter that “could have been filled out by anyone.” (Doc. 1 at 41). Defendants argue that Plaintiffs do not have standing to assert such a claim. (Doc. 40 at 8–9).

The Elections Clause of the United States Constitution states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]” U.S. Const. art. I, § 4, cl. 1. The Elections Clause authorizes the state governments to regulate federal elections held in the state, while Congress retains “exclusive control” to alter a state’s regulations. Colegrove v. Green, 328 U.S. 549, 554 (1946). A separate provision, the “Electors Clause” of the Constitution, states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….” U.S. Const. art. II, § 1, cl. 2.

Plaintiffs’ Complaint alleges that Defendants violated the Elections Clause. However, the Complaint does not allege grounds for standing to assert this claim, nor does it distinguish between the status of the groups of Plaintiffs. At oral argument, Plaintiffs’