United States of America v. Fontes

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Adrian Fontes,
Defendant.
No. CV-26-00066-PHX-SMB
ORDER
The Court now considers Arizona Alliance for Retired Americans’ (“Alliance”)
Motion to Intervene (Doc. 9) and the Motion to Intervene collectively filed by Common
Cause, Shannon Roivas, Caleb Trevino, and Kara Janssen (collectively, the “Common
Cause Intervenors”) (Doc. 14). The Court collectively refers to Alliance and the Common
Cause Intervenors as the “Proposed Intervenors.” The Court denies the Proposed
Intervenors’ Motions for the following reasons.
I. BACKGROUND
On July 28, 2025, the Attorney General of the United States—pursuant to her
“investigation into Arizona compliance with federal election law”—requested that the
Secretary of the State of Arizona, Adrian Fontes (“Secretary Fontes”), produce “Arizona’s
statewide voter registration list” (the “SVRL”). (Doc. 1 at 3 ¶ 9, 5 at ¶¶21–22.) The
Attorney General “demanded the electronic copy of Arizona’s SVRL with all fields, which
means the registrant’s full name, date of birth, residential address, his or her state driver’s
license number or the last four digits of the registrant’s social security number.” (Id. at 6
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¶ 27.) Secretary Fontes refused this request, citing “state and federal privacy laws which
he asserts prohibits Arizona from producing the information sought.” (Id. at 7 ¶ 29.) In so
doing, the Attorney General avers that Secretary Fontes violated the Civil Rights Act of
1960 (the “CRA”), 52 U.S.C. § 20703. (Id. ¶ 31–33.) The Attorney General thus brought
the present suit to compel Secretary Fontes to produce the SVRL.
Thereafter, Alliance, Common Cause, Roivas, Trevino, and Janssen filed their
respective motions to intervene. The Court briefly introduces each Proposed Intervenor.
Alliance: Alliance describes itself as “a nonpartisan § 501(c)(4) membership
organization and the chartered state affiliate of the Alliance for Retired
Americans, a grassroots organization” with approximately 51,000 members
in Arizona. (Doc. 9 at 8.) “The Alliance is dedicated to ensuring social and
economic justice and protecting the civil rights of retirees after a lifetime of
work, including by ensuring that its members have access to the franchise
and can meaningfully participate in Arizona’s elections.” (Id.)
Common Cause: Common Cause describes itself as “a nonpartisan
organization committed to, inter alia, ensuring that all eligible Arizona
voters register to vote and exercise their right of suffrage at each election.”
(Doc. 14 at 12.) Common Cause has approximately 30,000 members in
Arizona. (Id.)
Roivas: Rovias describes herself as “a registered Arizona voter who moved
to the state from North Carolina in 2019.” (Id. at 13.) Due to her “studies
and work,” Rovias “has had to move around and has been meticulous in
keeping her documentation and voter registration up to date, including when
she moved to Arizona.” (Id.)
Trevino: Trevino describes himself as “a registered Arizona voter.” (Id.
at 14.) Trevino was “[b]orn in Mexico, he moved to the United States and
became a naturalized citizen as a young child.” (Id.) “Trevino was unable
to vote in the 2024 election because he was moving within Arizona and his
updated voter registration was not processed in time.” (Id.)
Jansen: Jansen describes herself as a “registered Arizona voter who has lived
in the state her whole life.” (Id.) “Over a decade ago, Ms. Janssen was
convicted for drug-related felony offenses” but has been “out of prison for
seven years and had her voting rights restored approximately one year ago.”
(Id.)
At bottom, the Proposed Intervenors contend that disclosure of the SVRL implicates a
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variety of privacy concerns and would deter voting generally. The Court now considers
the Motions to Intervene.
II. DISCUSSION
A non-party who wishes to join a suit may move to intervene under Federal Rule of
Civil Procedure (“Rule”) 24. Rule 24 speaks of two types of intervenors: (1) intervenors
of right—those whom the court must let intervene; and (2) permissive intervenors—those
whom the court may let intervene. The Proposed Intervenors argue that they qualify as
either an intervenor of right or a permissive intervenor. (Doc. 9 at 9, 15; Doc. 14 at 15,
21.) The Court considers each argument in turn.
A. Intervention of Right
The Court first assesses whether any of the Proposed Intervenors qualify as an
intervenor of right. Rule 24(a)(2) requires courts, upon timely motion, to permit
intervention of right by anyone who “claims an interest relating to the property or
transaction that is the subject of the action, and is so situated that disposing of the action
may as a practical matter impair or impede the movant’s ability to protect its interest, unless
existing parties adequately represent that interest.”
Under Rule 24(a)(2), a party is entitled to intervene as a matter of right where:
“(1) the intervention is timely; (2) the applicant has a significant protectable interest
relating to the property or transaction that is the subject of the action; (3) the disposition of
the action may, as a practical matter, impair or impede the applicant’s ability to protect its
interest; and (4) the existing parties may not adequately represent the applicant’ s interest.”
Gonzalez v. Arizona, 485 F.3d 1041, 1051 (9th Cir. 2007) (citation modified). In assessing
these elements, “courts are guided primarily by practical and equitable considerations, and
the requirements for intervention are broadly interpreted in favor of intervention.” United
States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). Here, even assuming the
first three elements are met, the Proposed Intervenors fail to demonstrate that their interests
are not already adequately represented.
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1. Adequate Representation Presumptions
The Ninth Circuit has long recognized that “[w]here the government is acting on
behalf of a constituency it represents” there is a presumption “that the government will
adequately represent that constituency.” Gonzalez, 485 F.3d at 1052 (citation modified).
“In order to overcome this presumption, the would-be intervenor must make a very
compelling showing that the government will not adequately represent its interest. Id.
(citation modified) (emphasis added). A similar presumption exists where “an intended
intervenor and a party in the action seek the same ultimate objective.” Prete v. Bradbury,
438 F.3d 949, 957 (9th Cir. 2006).
Neither Motion discusses these presumptions. Accordingly, neither Motion
contends that these presumptions are inapplicable, nor do they attempt to argue under the
associated heightened standard. These omissions undermine the Proposed Intervenors’
positions given that both presumptions apply here.
The adequate government representation presumption plainly applies here. As
noted, Secretary Fontes is sued in his official capacity, and as such is representing his
constituency—Arizona voters—which encompasses the Proposed Intervenors. Other
courts have recognized as much. See e.g., Mussi v. Fontes, No. CV-24-01310-PHX-DWL,
2024 WL 3396109, at *2 (D. Ariz. July 12, 2024). Notably, Mussi was a suit against
Secretary Fontes in which Alliance filed a very similar motion to intervene which was
denied under the adequate government representation presumption. Id. at *2–4.
Additionally, the ultimate objective presumption applies here. Secretary Fontes and
the Proposed Intervenors seek the same outcome—preventing the Attorney General from
accessing the SVRL. As noted, the Attorney General argues that Secretary Fontes must
turn over the SVRL pursuant to the CRA. (Doc. 1 at 7 ¶¶ 31–33.) Secretary Fontes
disagrees. As made clear in his recent Motion to Dismiss (Doc. 25), Secretary Fontes
contends that the Attorney General is not entitled to the SVRL under either the CRA or
other related federal and state law. As relevant here, Secretary Fontes invokes a body of
law designed to protect against the invasion of voters’ personal privacy including the
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Privacy Act, the E-Government Act, the CRA, the National Voter Registration Act
(“NVRA”), the Help America Vote Act (“HAVA”), and a variety of Arizona statutes.
Simply put, Secretary Fontes’ ultimate objective in this litigation is to keep the Attorney
General from accessing the SVRL. As the Court will discuss below, the Proposed
Intervenors pursue the same objective, albeit dressed in a slightly different rationale.
Given the existence of both presumptions,1 the Motions erroneously presume that
“the burden of showing inadequacy of representation is minimal and is satisfied if the
applicant shows that representation of its interests may be inadequate.” See Prete, 438
F.3d at 956 (citation modified). While this is the generally applicable standard, it is
inapplicable here. The Court thus searches the Motions for a “very compelling” reason as
to why Secretary Fontes will not adequately represent the Proposed Intervenors’ interests.
The Court already outlined Secretary Fontes’ interest in this case; thus, the Court addresses
the Proposed Intervenors’ interests, beginning with Alliance.
2. Alliance
Alliance contends that Secretary Fontes “does not adequately represent the
Alliance’s specific interests” because “a government-official defendant’s interests are
necessarily colored by their view of the public welfare rather than the more parochial views
of a proposed intervenor whose interest is personal to it.” (Doc. 9 at 14 (citation
modified).) This argument plainly contradicts the Ninth Circuit’s adequate government
representation presumption, which this Court is “duty-bound to follow.” See Mussi, 2024
WL 3396109, at *2. Nevertheless, Alliance does not point to a materially diverging
interest.
Alliance suggests Secretary Fontes “is obliged to enforce the requirements of the
NVRA and HAVA, in addition to state laws governing maintenance of the voter
registration list [and thus] has an obligation to weigh and carry out public duties that the
Alliance does not share.” (Doc. 9 at 15.) Alliance goes on to argue that “the NVRA
1 Prete involved a situation in which both the “ultimate objective” and “adequate
government representation” presumptions were present. 438 F.3d at 957. The court did
not opine as to the effect of the presence of both presumptions. See id. The court ultimately
applied the “very compelling” standard. See id.
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specifically requires state election officials to ‘balance competing
objectives’—maintaining accurate and current voter rolls while promoting access to the
ballot box—that do not pertain to the Alliance or its interests.” (Id.) Alliance points out
that it is not burdened with these duties and “is focused entirely on maintaining the privacy
of its members’ sensitive personal information and promoting its own organizational
objectives.” (Id. at 16.)
These arguments do not constitute a “very compelling” showing that Alliance’s
interests are inadequately represented. Indeed, the Ninth Circuit rejected a similar line of
argument in Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, 960 F.3d 603,
620 (9th Cir. 2020). There, the court recognized that a government defendant having
“broader concerns” does not necessarily “lead it to stake out an undesirable legal position.”
Id. Also, Mussi persuasively rejected a nearly identical argument made by Alliance. 2024
WL 3396109, at *2–3. There, the court similar considered Alliance’s argument “that
Secretary Fontes does not share and/or is unable to adequately represent their interests
because he may hold a different perspective than they do on how the NVRA should, in
general, be effectuated.” Id. at *3. Mussi’s holding on this point applies with equal force
here: “Even assuming that Proposed Intervenors have identified some philosophical
difference between their view of the NVRA and that of Secretary Fontes, there is no reason
to believe this difference will cause Secretary Fontes to stake out a legal position in this
case that is undesirable from their perspective.” Id. Additionally, Alliance fails to explain
how the NVRA’s “competing interests” would motivate Secretary Fontes to disclose the
SVRL. Alliance contends that NVRA requires Secretary Fontes to balance “maintaining
accurate and current voter rolls [with] promoting access to the ballot box.” (Doc. 9 at 16.)
However, Alliance fails to explain how “maintaining accurate and current voter rolls” or
“promoting access to the ballot box” necessarily requires disclosure of the SVRL. Indeed,
Secretary Fontes plainly argues that disclosure is not required under the NVRA. (Doc. 25
at 16.)
Additionally, the Court is not convinced that Alliance has a different “interest” in
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this litigation. Alliance and Secretary Fontes clearly share a common
purpose—safeguarding the SVRL. Thus, Alliance’s arguments more accurately suggest
that it has a “different perspective” or “philosophical difference” in the application of
certain laws. See Mussi, 2024 WL 3396109, at *3. However, any differences “rooted in
style and degree” or a “[d]ivergence of tactics and litigation strategy [are] not tantamount
to divergence over the ultimate objective of the suit.” Perry v. Proposition 8 Off.
Proponents, 587 F.3d 947, 949 (9th Cir. 2009). These differences do not affect “the
ultimate bottom line” and do not defeat the presumption of adequate representation. See
id.
3. The Common Cause Intervenors
The foregoing analysis applies with equal force to Common Cause Intervenors. In
short, the Common Cause Intervenors argue there are “diverging perspectives . . . between
the government’s need to balance many interests and Proposed Intervenors’ particular
interest in their own privacy [which] present[s] a classic scenario supporting intervention.”
(Doc. 14 at 21.) Again, the Ninth Circuit recently made clear that a government litigant
representing “broader concerns” is, by itself, insufficient to rebut the presumption of
adequacy. See Oakland, 960 F.3d at 620.
Moreover, the Common Cause Intervenors do little to show that they have
materially different interests than Secretary Fontes in this litigation. The Common Cause
Intervenors’ stated interests are as follows: (1) protecting their privacy; (2) preventing the
Attorney General from accessing the SVRL information which will “likely to be used to
challenge the registration of certain Arizona voters”; and (3) promoting voter registration
which will be chilled if voters “sensitive personal data will be provided to the federal
government and potentially misused as part of a national database.” (Doc. 14 at 17.) These
interests are not materially different from Secretary Fontes’, whose Motion to Dismiss
makes clear that he is seeking to protect voter privacy. (Doc. 25.) The Common Cause
Intervenors’ stated interests are not distinct and fall under the ambit of voter privacy.
Additionally, Secretary Fontes stakes his position under a variety of state laws clearly
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animated by privacy concerns—the aptly named Privacy Act being just one example. (Id.)
Although Secretary Fontes might not be acting exclusively to protect the Proposed
Intervenors’ privacy interests, his arguments necessarily encompass those interests. Again,
the onus is on the Common Cause Intervenors to demonstrate that the “government will
take [an] undesirable legal position.” See Oakland, 960 F.3d at 620. They have failed to
do so.2
Each Motion also argues that Secretary Fontes’ broader obligations may oblige him
to negotiate a settlement that would sully the Prospective Intervenors’ interests. (Doc. 9
at 15; Doc. 14 at 20.) The Court is not convinced that a remote3 possibility of a future
settlement establishes that the Proposed Intervenor’s interests are not being adequately
represented. See Benson, 2025 WL 3520406, at *6 (“[I]nadequacy cannot be shown based
on mere ‘speculation’ about an existing party’s future actions.”). Of course, this argument
is also hampered by the fact that it is available to any proposed intervenor in any case.
Nevertheless, the possibility of settlement here seems particularly remote given the nature
of this case and Secretary Fontes’ recent Motion to Dismiss.
At bottom, the Proposed Intervenors’ arguments do little more than establish that it
might pursue different litigation strategies or argue this case from a different perspective.
Indeed, the Common Cause Intervenors make clear that their “intervention would not add
any new issues to this litigation; instead, Proposed Intervenors offer their unique
perspective.” (Doc. 14 at 22.) There is no reason provided suggesting that Alliance’s
2 Although this issue is moot, the Common Cause Intervenors filed their Motion after
Alliance filed theirs. Given the similarity between the Motions, even if the Court granted
Alliance’s Motion, dismissal of the Common Cause Intervenors’ Motion would still be
appropriate. If Alliance’s Motion was granted, Alliance would be considered an existing
party and the Common Cause Intervenors would have to demonstrate that Alliance also
inadequately represents their interests. See, e.g., United States v. Benson, No.
1:25-CV-1148, 2025 WL 3520406, at *6 (W.D. Mich. Dec. 9, 2025) (noting that adequate
representation analysis changes with each successive intervenor). The Common Cause
Intervenors’ Motion does not address Alliance’s Motion.
3 Perhaps the Proposed Intervenors can rest assured regarding Fontes’ appetite for
settlement given his recent claim that “[t]hey’re going to have to put me in jail if they want
this information and have somebody else give it to them because I’m not going to do it.”
Jim Small, Fontes Vows to Fight DOJ Lawsuit Over Voter Data, Says He’d Rather Be
Jailed Than Comply, Arizona Mirror (Jan 6. 2026)
https://azmirror.com/2026/01/06/fontes-vows-to-fight-doj-lawsuit-over-voter-data-says-
hed-rather-be-jailed-than-comply/.
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intervention would be any different. However, these arguments do little to rebut the
presumptions in favor of adequate representation in this case. A mere “difference in
perspective fail[s] to establish inadequacy for Rule 24(a)(2) purposes” where a
governmental litigant is pursuing the same ultimate objective as a proposed intervenor. See
Mussi, 2024 WL 3396109, at *4.
The Court thus denies the Proposed Intervenors’ request to intervene as a matter of
right.
B. Permissive Intervention
Because intervention of right is not appropriate in this case, the Court considers the
Proposed Intervenors’ request for permissive intervention. Under Rule 24(b)(1)(B), “the
court may permit anyone to intervene who . . . has a claim or defense that shares with the
main action a common question of law or fact.” “[A] court may grant permissive
intervention where the applicant for intervention shows (1) independent grounds for
jurisdiction; (2) the motion is timely; and (3) the applicant's claim or defense, and the main
action, have a question of law or a question of fact in common.” United States v. City of
Los Angeles, 288 F.3d 391, 403 (9th Cir. 2002) (citation modified). The Court has “broad
discretion to make this determination,” Perry v. Schwarzenegger, 630 F.3d 898, 905 (9th
Cir. 2011), and can even deny a request for permissive intervention even where “an
applicant satisfies [the] threshold requirements,” Donnelly v. Glickman, 159 F.3d 405, 412
(9th Cir. 1998). When determining whether to grant permissive intervention, courts look
to:
[T]he nature and extent of the intervenors’ interest, their standing to raise
relevant legal issues, the legal position they seek to advance, and its probable
relation to the merits of the case, whether the intervenors’ interests are
adequately represented by other parties, whether intervention will prolong or
unduly delay the litigation, and whether parties seeking intervention will
significantly contribute to full development of the underlying factual issues
in the suit and to the just and equitable adjudication of the legal questions
presented.
Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977) (citation
modified). The Court, having weighed these considerations, declines to grant permissive
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intervention.
As made clear, the Proposed Intervenors’ interests are adequately represented in this
case, which cuts against permissive intervention. See Proposition 8 Off. Proponents, 587
F.3d at 955. Also, the nature of this case does not allow for the Proposed Intervenors to
“significantly contribute to full development of the underlying factual issues in the suit”
given that this case turns almost exclusively on legal questions. See Spangler, 552 F.2d
at 1329. The only salient fact in this case that the Secretary Fontes denied the Attorney
General’s request for the SVRL.
The Court is similarly dubious as to whether the Proposed Intervenors stake out a
distinct legal position that would meaningfully enhance the “equitable adjudication of the
legal questions presented.” See id. By way of example, the Alliance’s Proposed Motion
to Dismiss (Doc. 23) raises the exact legal arguments Secretary Fontes raises in his Motion
to Dismiss. Alliance’s Proposed Motion argues:
First, DOJ has not complied with the basic procedural requirements
contained within Title III [of the CRA], namely that it provide Arizona with
a proper “basis” and “purpose” for its demand. Second, Title III does not
preempt Arizona’s privacy protections for sensitive personal data. Third,
DOJ’s attempted collection and maintenance of this data violates the federal
Privacy Act.
(Doc. 23 at 5.) Secretary Fontes’ Motion argues:
First, Plaintiff has not provided a statement of the basis and purpose for its
demand for records that complies with the CRA. Second, the CRA
provision on which Plaintiff relies is not part of the enforcement scheme of
the [NVRA] and the [HAVA], which were enacted more than thirty and
fifty years after the CRA, respectively. Third, Plaintiff has not complied
with federal laws, including the Privacy Act of 1974, the E-Government
Act, and the Driver’s Privacy Protection Act (the “DPPA”) regarding
records like Arizona’s [SVRL]. Finally, the CRA does not preempt the
Arizona laws that protect voter information.
(Doc. 25 at 2.) Alliance’s Proposed Motion makes arguments identical to those in
Secretary Fontes’ Motion. Of course, Alliance’s Proposed Motion is not a carbon copy of
Secretary Fontes’ Motion, however, the striking similarities between the two demonstrate
that Alliance is doing little in the way of either raising new legal issues or materially
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developing those issues raised by Secretary Fontes. The Common Cause Intervenors have
not filed a proposed motion to dismiss. However, based on its current Motion to Intervene,
the Court is not convinced that it should be treated any differently from Alliance.
Accordingly, the Court denies the Proposed intervenors request for permissive
intervention.
III. CONCLUSION
IT IS HEREBY ORDERED denying Alliance’s Motion to Intervene (Doc. 9) and
the Common Cause Intervenors’ Motion to Intervene (Doc. 14).
IT IS FURTHER ORDERED denying Alliance’s Motion for Leave to File Motion
to Dismiss and Opposition to Motion to Compel (Doc. 22) as moot.
IT IS FURTHER ORDERED striking Alliance’s Proposed Motion to Dismiss
(Doc. 23) and Proposed Response in Opposition to Motion for Order to Compel (Doc. 24).
Dated this 9th day of March, 2026.
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