THOMAS, Chief Judge:
We granted, in a prior order, rehearing en banc in this appeal. In a separate order, filed concurrently with this opinion, we scheduled en banc oral argument for the week of January 17, 2017, in San Francisco, California. The question, then, is whether to grant plaintiffs' motion for an injunction pending appeal. A motions panel denied the motion in the first instance, but we may reconsider that decision as an en banc court. For the reasons stated herein, we grant the motion.
The standard for evaluating an injunction pending appeal is similar to that employed by district courts in deciding whether to grant a preliminary injunction. Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983); see also Southeast Alaska Conservation Council v. U.S. Army Corps of Eng'rs, 472 F.3d 1097, 1100 (9th Cir. 2006) (order) (discussing injunctions pending appeal). Therefore, we grant the motion for a preliminary injunction pending appeal essentially for the reasons provided in the dissent in Feldman v. Arizona Sec'y of State, 840 F.3d 1057, 1085-98 (9th Cir. 2016), a copy of which is attached (along with a copy of the majority opinion).
However, there are additional considerations when we consider granting an injunction pending appeal in an election case. When faced with an appeal in cases in which an election is pending, federal courts are "required to weigh, in addition to the harms attendant upon issuance or
At the outset, it is important to remember that the Supreme Court in Purcell did not set forth a per se prohibition against enjoining voting laws on the eve of an election. 549 U.S. at 4, 127 S.Ct. 5; see also Veasey v. Perry, ___ U.S. ___, 135 S.Ct. 9, 10, 190 L.Ed.2d 283 (2014) (Ginsburg, J., dissenting) ("Purcell held only that courts must take careful account of considerations specific to election cases, not that election cases are exempt from traditional stay standards."). Rather, courts must assess the particular circumstances of each case in light of the concerns expressed by the Purcell court to determine whether an injunction is proper.
In this case, the factors that animated the Supreme Court's concern in Purcell are not present. First, the injunction does not affect the state's election processes or machinery. The injunction pending appeal sought by plaintiffs would not change the electoral process, it simply would enjoin enforcement of a legislative act that would criminalize the collection, by persons other than the voter, of legitimately cast ballots.
H.B. 2023 amended Arizona's election statutes to provide that "A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony." Ariz. Rev. Stat. § 16-1005(H). Enjoining enforcement of H.B. 2023 will not have any effect on voters themselves, on the conduct of election officials at the polls, or on the counting of ballots. Under H.B. 2023, as the State agrees, legitimate ballots collected by third parties are accepted and counted, and there are no criminal penalties to the voter. So, under H.B. 2023, if a ballot collector were to bring legitimate ballots to a voting center, the votes would be counted, but the collector would be charged with a felony. Thus, the only effect of H.B. 2023, although it is serious, is to make the collection of legitimate ballots by third parties a felony. So, unlike the circumstances involved in Purcell or Southwest Voter, the injunction at issue here does not involve any change at all to the actual election process. That process will continue unaltered, regardless of the outcome of this litigation. The only effect is on third party ballot collectors, whose efforts to collect legitimate ballots will not be criminalized, pending our review. No one else in the electoral process is affected. And no electoral process is affected.
In contrast, the voter-ID law at issue in Purcell changed who was eligible to vote and directly told election officials to turn people away if they lacked the proper proof of citizenship. That circumstance is far different from the case at bar where, as the district court pointed out, the law "does not eliminate or restrict any method of voting, it merely limits who may possess, and therefore return, a voter's early ballot." Feldman v. Arizona Sec'y of State, ___ F.Supp.3d ___, 2016 WL 5341180, at *9 (D. Ariz. 2016). Thus, in our case, in contrast to Purcell, an injunction will not confuse election officials or deter people from going to the polls for fear that they lack the requisite documentation. The election process is unaffected.
Second, none of the cases that caution against federal court involvement in elections involved a statute that newly criminalizes activity associated with voting. This law is unique in that regard.
Third, the concern in Purcell and Southwest Voter was that a federal court injunction would disrupt long standing state procedures.
Fourth, unlike the circumstances in Purcell and other cases, plaintiffs did not delay in bringing this action. This action was filed less than six weeks after the passage of the legislation, and plaintiffs have pursued expedited consideration of their claims at every stage of the litigation, both before the district court and ours. Indeed, it was the State that opposed an expedited hearing and briefing schedule at every turn, not the plaintiffs.
Fifth, Purcell was decided prior to the Supreme Court's opinion in Shelby Cty. Ala. v. Holder, ___ U.S. ___, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), which declared unconstitutional the Voting Rights Act's coverage formula, and effectively invalidated preclearance requirements under § 5 of the Act. In short, Purcell was decided when the preclearance regime under § 5 of the Voting Rights Act was still intact, and Arizona was a covered jurisdiction. The Court in Purcell emphasized that the challenged law had already passed the then-effective § 5 preclearance requirements of the United States Department of Justice. As a result, there was a prima facie reason to believe that the challenged statute was not discriminatory, alleviating the concern that the law violated voting rights. Purcell, 549 U.S. at 3, 127 S.Ct. 5. That same reassurance is absent here.
Indeed, this case presents precisely the opposite concern. In 2012, Arizona submitted a previous iteration of H.B. 2023 for preclearance. The Department of Justice expressed concern and refused to preclear the bill, S.B. 1412, without more information about its impact on minority voters. Rather than address this concern, Arizona withdrew S.B. 1412 from preclearance and repealed it the following session. Now, unhindered by the obstacle of preclearance, Arizona has again enacted this law — a mere seven months before the general election — with nothing standing in its way except this court. Thus, not only are the preclearance protections considered important in Purcell absent in this case, but it is quite doubtful that the Justice Department would have granted preclearance. In the wake of Shelby County, the judiciary provides the only meaningful review of legislation that may violate the Voting Rights Act.
Sixth, unlike the situation in Purcell, we have, as a court, given careful and thorough consideration to these issues. Purcell involved a barebones order issued by a two judge motion panel, which did not contain a reasoned decision. As the Court described in Purcell, "[t]here has been no
In short, the injunction applies to the operation of a statute that would impose felony sanctions on third parties for previously legal action in connection with elections when, as everyone concedes, the statute has no impact on the election process itself. We are preserving the status quo for this election, and we will consider the challenge to the new legislation at our en banc hearing in the next few months.
LESLIE FELDMAN; LUZ MAGALLANES; MERCEDEZ HYMES; JULIO MORERA; CLEO OVALLE; PETERSON ZAH, Former Chairman and First President of the Navajo Nation; THE DEMOCRATIC NATIONAL COMMITTEE; DSCC, AKA Democratic Senatorial Campaign Committee; THE ARIZONA DEMOCRATIC PARTY; KIRKPATRICK FOR U.S. SENATE; HILLARY FOR AMERICA, Plaintiffs-Appellants,
BERNIE 2016, INC., Intervenor-Plaintiff-Appellant,
v.
ARIZONA SECRETARY OF STATE'S OFFICE; MICHELE REAGAN, in her official capacity as Secretary of State of Arizona; MARICOPA COUNTY BOARD OF SUPERVISORS; DENNY BARNEY; STEVE CHUCRI; ANDY KUNASEK; CLINT HICKMAN; STEVE GALLARDO, member of the Maricopa County Board of Supervisors, in their official capacities; MARICOPA COUNTY RECORDER AND ELECTIONS DEPARTMENT; HELEN PURCELL, in her official capacity as Maricopa County Recorder; KAREN OSBORNE, in her official capacity as Maricopa County Elections Director; MARK BRNOVICH, in his official capacity as Arizona Attorney General, Defendants-Appellees,
THE ARIZONA REPUBLICAN PARTY, Intervenor-Defendant-Appellee.
No. 16-16698
D.C. No. 2:16-cv-01065-DLR
OPINION
Appeal from the United States District Court for the District of Arizona, Douglas L. Rayes, District Judge, Presiding
Argued and Submitted October 19, 2016, San Francisco, California
Filed October 28, 2016
Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta; Dissent by Chief Judge Thomas
Bruce V. Spiva (argued), Amanda R. Callais, Elisabeth C. Frost, and Marc E. Elias, Perkins Coie LLP, Washington, D.C.; Joshua L. Kaul, Perkins Coie LLP, Madison, Wisconsin; Sarah R. Gonski and Daniel C. Barr, Perkins Coie LLP, Phoenix, Arizona; for Plaintiffs-Appellants.
Malcolm Seymour, Garvey Schubert Baker, New York, New York; D. Andrew Gaona, Andrew S. Gordon, and Roopali H. Desai, Coopersmith Brockelman PLC,
Karen J. Hartman-Tellez (argued) and Kara M. Karlson, Assistant Attorneys General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendants-Appellees.
Sara J. Agne (argued), Colin P. Ahler, and Brett W. Johnson, Snell & Wilmer LLP, Phoenix, Arizona, for Intervenor-Defendants-Appellees.
IKUTA, Circuit Judge:
In April 2016, Leslie Feldman and other appellants
The district court's order denying the motion for a preliminary injunction sets forth the facts in detail, Feldman v. Ariz. Sec'y of State's Office, ___ F.Supp.3d ___, No. CV-16-01065-PHX-DLR, 2016 WL 5341180 (D. Ariz. Sept. 23, 2016), so we provide only a brief summary of the pertinent background facts and procedural history. The district court's factual findings are discussed in detail as they become relevant to our analysis.
Arizona law permits "[a]ny qualified elector" to "vote by early ballot." Ariz. Rev. Stat. § 16-541(A).
Since 1992, Arizona has prohibited any person other than the elector from having "possession of that elector's unvoted absentee ballot." See 1991 Ariz. Legis. Serv. Ch. 310, § 22 (S.B. 1390) (West). In 1997, the Arizona legislature expanded that prohibition to prevent any person other than the elector from having possession of any type of unvoted early ballot. See 1997 Ariz. Legis. Serv. Ch. 5, § 18 (S.B. 1003) (West) (codified at Ariz. Rev. Stat. § 16-542(D)). As the Supreme Court of Arizona explained, regulations on the distribution of absentee and early ballots advance Arizona's constitutional interest in secret voting, see Ariz. Const. art. VII, § 1, "by setting forth procedural safeguards to prevent undue influence, fraud, ballot tampering, and voter intimidation." Miller v. Picacho Elementary Sch. Dist. No. 33, 179 Ariz. 178, 180, 877 P.2d 277 (1994) (en banc).
Arizona has long supplemented its protection of the early voting process through the use of penal provisions, as set forth in section 16-1005 of Arizona's statutes. For example, since 1999, it has been a class 5 felony for a person knowingly to mark or to punch an early ballot with the intent to fix an election. See 1999 Ariz. Legis. Serv. Ch. 32, § 12 (S.B. 1227) (codified as amended at Ariz. Rev. Stat. § 16-1005(A)). And in 2011, Arizona enacted legislation that made offering to provide any consideration to acquire an early ballot a class 5 felony. See 2011 Ariz. Legis. Serv. Ch. 105, § 3 (S.B. 1412) (codified at Ariz. Rev. Stat. § 16-1005(B)). That same legislation regulated the process of delivering "more than ten early ballots to an election official." See id. (formerly codified at Ariz. Rev. Stat. § 16-1005(D)).
In 2016, Arizona again revised section 16-1005 by enacting H.B. 2023 to regulate the collection of early ballots. This law added the following provisions to the existing statute imposing penalties for persons abusing the early voting process:
Ariz. Rev. Stat. § 16-1005(H)-(I). Thus, this amendment to section 16-1005 makes it a felony for third parties to collect early ballots from voters unless the collector falls into one of many exceptions. See id. The prohibition does not apply to election officials acting as such, mail carriers acting as such, any family members, any persons who reside at the same residence as the voter, or caregivers, defined as any person who provides medical or health care assistance to voters in a range of adult residences and facilities. Id. § 16-1005(I)(2). H.B. 2023 does not provide that ballots collected in violation of this statute are disqualified or disregarded in the final election tally.
Before H.B. 2023's enactment, third-party early ballot collection was available to prospective voters as an additional and convenient means of submitting a ballot. It was also an important part of the Democratic get-out-the-vote strategy in Arizona. Since at least 2002, the Arizona Democratic Party has collected early ballots from its core constituencies, which it views to include Hispanic, Native American, and African American voters. According to Feldman, H.B. 2023's limitation on third-party ballot collection will require the Democratic Party to retool its get-out-the-vote efforts, for example by increasing voter transportation to polling locations and revising its training scripts to focus on early in-person voting. This, in turn, will require the party to divert resources from projects like candidate promotion to more direct voter outreach to ensure that voters are either casting early ballots in person or mailing their ballots on time.
Feldman sued Arizona
In June, Feldman moved for a preliminary injunction prohibiting the enforcement of H.B. 2023. After full briefing, the district court denied the motion on September 23, 2016, on the ground that Feldman
Feldman filed a timely notice of interlocutory appeal on the same day that the district court entered its order, and a few days later she filed an emergency motion in the district court to stay its order and enjoin the enforcement of H.B. 2023 pending appeal. The district court noted that the standard for obtaining an injunction pending appeal was the same as the standard for obtaining a preliminary injunction and denied the motion because Feldman had not shown that she was likely to succeed on the merits, Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), or that "there are serious questions going to the merits" and "the balance of hardships tips sharply in the plaintiff's favor." All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
Feldman filed an emergency motion with this court for an injunction pending appeal and for an expedited appeal. On October 14, a motions panel denied the former request, but granted the latter. The parties were directed to file simultaneous merits briefs by October 17, and the appeal was argued orally on October 19.
We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1). On an appeal from the denial of a preliminary injunction, we do not review the underlying merits of the claims. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). Instead, "[o]ur review is limited and deferential," id. and we must affirm the district court's order unless the district court abused its discretion. Hendricks v. Bank of Am., N.A., 408 F.3d 1127, 1139 (9th Cir. 2005).
Our abuse-of-discretion analysis proceeds in two steps. See Gilman v. Schwarzenegger, 638 F.3d 1101, 1105-06 (9th Cir. 2011) (citing United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc)). At step one, we ask whether the district court "based its ruling on an erroneous view of the law," Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999), reviewing the district court's interpretation of underlying legal principles de novo, Shelley, 344 F.3d at 918. We then ask whether the district court's application of the legal standard was illogical, implausible, or otherwise without support in inferences
A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22, 129 S.Ct. 365. The standard to obtain such relief is accordingly stringent: "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20, 129 S.Ct. 365. A plaintiff must make a showing as to each of these elements, although in our circuit "if a plaintiff can only show that there are `serious questions going to the merits' — a lesser showing than likelihood of success on the merits — then a preliminary injunction may still issue if the `balance of hardships tips sharply in the plaintiff's favor,' and the other two Winter factors are satisfied." Shell Offshore, 709 F.3d at 1291. "That is, `serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." All. for the Wild Rockies, 632 F.3d at 1135.
When faced with a request to interfere with a state's election laws "just weeks before an election," federal courts are "required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases." Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam). These considerations often counsel restraint. In the context of legislative redistricting, for example, the Supreme Court has long cautioned that "where an impending election is imminent and a State's election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief ... even
With these principles in mind, we turn to our review of the district court's order denying Feldman's motion for a preliminary injunction against the enforcement of H.B. 2023. On appeal, Feldman argues that the district court erred in concluding that she was unlikely to succeed on her Voting Rights Act, Fourteenth Amendment, and First Amendment claims.
We first consider Feldman's claim that H.B. 2023 violates § 2 of the Voting Rights Act.
"Inspired to action by the civil rights movement," Congress enacted the Voting Rights Act of 1965 to improve enforcement of the Fifteenth Amendment.
"At the time of the passage of the Voting Rights Act of 1965, § 2, unlike other provisions of the Act, did not provoke significant debate in Congress because it was viewed largely as a restatement of the Fifteenth Amendment." Chisom v. Roemer, 501 U.S. 380, 392, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). In 1980, a plurality of the Supreme Court held that the Fifteenth Amendment, and therefore the Voting Rights Act, were violated only if there was intentional discrimination on account of race. City of Mobile v. Bolden, 446 U.S. 55, 60-62, 100 S.Ct. 1519, 64 L.Ed.2d 47 (1980) (plurality opinion).
In response to Bolden, "Congress substantially revised § 2 to make clear that a violation could be proved by showing discriminatory effect alone and to establish as the relevant legal standard the `results test,'" applied by the Supreme Court in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and by other federal courts before Bolden. Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Opinions decided before Bolden had addressed "vote dilution" claims, that is, challenges to practices that diluted a minority group's voting power. See Shaw v. Reno, 509 U.S. 630, 641, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). In amending § 2, Congress acted to "prohibit legislation that results in the dilution of a minority group's voting strength, regardless of the legislature's intent." Id. (emphasis omitted); see also Gingles, 478 U.S. at 47-51, 106 S.Ct. 2752. Section 2 also applied to "vote denial" claims, meaning challenges to practices that denied citizens the opportunity to vote, such as literacy tests.
As amended in the 1982 amendments, Section 2 of the Voting Rights Act provides:
52 U.S.C. § 10301.
The Supreme Court interpreted this language in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25. Gingles explained that to make out a § 2 violation, a plaintiff must show that "under the totality of the circumstances, a challenged election law or procedure had the effect of denying a protected minority an equal chance to participate in the electoral process." Id. at 44 n.8, 106 S.Ct. 2752. The "totality of the circumstances" includes factors that the Senate derived from cases
Although many courts have analyzed vote dilution claims, "there is little authority on the proper test to determine whether the right to vote has been denied or abridged on account of race." Veasey v. Abbott, 830 F.3d at 244 (emphasis omitted); see also Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir.2016).
League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014); Veasey v. Abbott, 830 F.3d at 244; Ohio Democratic Party, 834 F.3d at 637-40; Frank v. Walker, 768 F.3d 744, 754-55 (7th Cir. 2014) (adopting the test "for the sake of argument").
We agree with this two-part framework, which is consistent with Supreme Court precedent, our own precedent, and with the text of § 2. Under the first prong, a plaintiff must show that the challenged voting practice results in members of a protected minority group having less opportunity than other members of the electorate to participate in the political process. Gonzalez v. Arizona, 677 F.3d 383, 405 (9th Cir. 2012) (en banc) (citing Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir. 1997)). This language "encompasses Section 2's definition of what kinds of burdens deny or abridge the right to vote." Veasey v. Abbott, 830 F.3d at 244. Section 2(a) prohibits a state or political subdivision from imposing any "voting qualification or prerequisite to voting" or other "standard, practice, or procedure" in a way that "results in a denial or abridgement" of any U.S. citizen's right to vote on account of race, color, or membership in "a language minority group," 52 U.S.C. § 10303(f), "as provided in subsection (b)." Id. § 10301(a). Subsection (b), in turn, provides that a plaintiff can establish a violation of § 2(a) if "based on the totality of circumstances," the "political processes leading to nomination or election in the State or political subdivision are not equally open to participation" by members of a protected class "in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Id. § 10301(b).
In interpreting this first prong, we have held that "a bare statistical showing of disproportionate impact on a racial minority does not satisfy the § 2 `results' inquiry." Salt River, 109 F.3d at 595 (emphasis omitted). Rather, "Section 2 plaintiffs must show a causal connection between the challenged voting practice and [a] prohibited discriminatory result." Id. As explained by the Sixth Circuit, a "challenged standard or practice causally contributes to the alleged discriminatory impact by affording protected group members less opportunity to participate in the political process." Ohio Democratic Party, 834 F.3d at 637-38.
The second prong "draws on the Supreme Court's guidance in Gingles," Veasey v. Abbott, 830 F.3d at 245, which explains the language in § 2(b) requiring a plaintiff to show a violation of the Act "based on the totality of circumstances." 52 U.S.C. § 10301(b). Under this second prong, the plaintiff must show that the challenged practice interacted with racial discrimination "to cause an inequality in the opportunities enjoyed by [minority] and [non-minority] voters to elect their preferred representatives." Gingles, 478 U.S. at 47, 106 S.Ct. 2752; see also Gonzalez, 677 F.3d at 405-06. In Gonzalez, we did not have occasion to reach this second step because the plaintiff had adduced no evidence of a causal connection between the challenged photo ID law and a disproportionate
The district court's legal determinations are reviewed de novo, Gonzalez, 677 F.3d at 406, but we defer to "the district court's superior fact-finding capabilities," and review its factual findings for clear error, Salt River, 109 F.3d at 591. In analyzing the first prong of a § 2 claim, the district court has the primary responsibility for determining "based `upon a searching practical evaluation of the past and present reality,' ... whether the political process is equally open to minority voters." Id. (quoting Gingles, 478 U.S. at 79, 106 S.Ct. 2752). At the second prong of a § 2 claim, the district court must make the "ultimate finding whether, under the totality of the circumstances, the challenged practice violates § 2." Gonzalez, 677 F.3d at 406. This "ultimate finding" is a question of fact that we review for clear error.
This case raises a vote denial claim, in that Feldman claims that H.B. 2023's restriction on the use of certain third-party ballot collectors denies or abridges minorities' opportunity to vote. As to the first prong of a § 2 claim, Feldman argues that H.B. 2023 caused minority group members to have less opportunity to participate in the political process than non-minorities. Feldman bases this claim on a multi-step argument. First, Feldman points to evidence in the record that minorities are statistically less likely than non-minorities to have access to a vehicle, are more likely to have lower levels of education and English proficiency than non-minorities, are more likely to suffer from health problems than non-minorities, are more likely to have difficult financial situations than non-minorities, and are more likely than non-minorities to rent houses rather than own them, which in turn makes them more
The district court rejected this argument at the first prong of the § 2 test based on its determination that Feldman failed to show that H.B. 2023 will cause protected minorities to have less electoral opportunities than non-minorities. The district court based its conclusion on both a per se legal rule and on its review of the evidence. First, the district court held that Feldman failed to provide any quantitative or statistical data showing that H.B. 2023's rule precluding the use of certain third-party ballot collectors had a disparate impact on minorities compared to the impact on non-minorities. The district court determined that as a matter of law, such data was necessary in order to establish a § 2 violation. Feldman does not dispute that she did not provide any direct data on the use of third-party ballot collectors,
While § 2 itself does not require quantitative evidence, past cases suggest that such evidence is typically necessary to establish a disproportionate burden on minorities' opportunity to participate in the political process.
We need not resolve this legal issue, however, because despite its ruling regarding the lack of statistical or quantitative evidence, the district court proceeded to review all the evidence in the record and rested its conclusion that Feldman had failed to satisfy the first prong of § 2 on the alternate ground that Feldman did not show that the burden of H.B. 2023 impacted minorities more than non-minorities. Deferring to "the district court's superior fact-finding capabilities," Salt River, 109 F.3d at 591, we conclude that this holding is not clearly erroneous.
To satisfy the first prong, Feldman adduced several different categories of evidence, including individual declarations, legislative history, and files from the Department of Justice.
First, the record includes the declarations of Arizona Democratic lawmakers and representatives of organizations that have collected and returned ballots in prior elections. These declarations generally state that members of the communities they have assisted rely on ballot collection services by third parties. The district court discounted this testimony because the declarants did not provide any comparison between the minority communities and non-minority communities. The record supports this finding. The majority of the declarants focused their efforts and obtained their experiences in minority communities.
Other declarations submitted to the district court stated generally that ballot collection by third parties benefits elderly voters, homebound voters, forgetful voters, undecided voters, and voters from rural areas, but the court found no evidence that these categories of voters were more likely to be minorities than non-minorities. Again, this finding is not clearly erroneous. For instance, the district court stated that while Feldman had provided evidence that the rural communities of Somerton and San Luis were 95.9% and 98.7% Hispanic or Latino and lacked home mail delivery, she did not provide evidence about home mail delivery to non-minorities who reside in the rural communities of Colorado City, Fredonia, Quartzite, St. David, Star Valley, and Wickenburg that are 99.5%, 89.1%, 92.5%, 92.1%, 91.4%, and 90.5% white, respectively. Similarly, while the record shows that the Tohono O'odham Nation lacks home mail delivery service, Feldman does not point to evidence showing that H.B. 2023 has a disproportionate impact on members of the Tohono O'odham Nation compared to non-minorities who also live in rural communities.
In addition to the multiple declarations described above, Feldman submitted legislative testimony from the debates on H.B. 2023, showing that a number of lawmakers expressed concerns that H.B. 2023 would impact minority communities, rural communities, working families, and the elderly. This evidence likewise failed to compare minority communities to non-minority communities.
Finally, the district court considered the Department of Justice's files regarding its evaluation of S.B. 1412 (a prior Arizona bill proposing ballot collection restrictions) for purposes of determining whether the bill was entitled to preclearance under § 5 of the Voting Rights Act.
On appeal, Feldman argues that the district court erred because it did not accept her multi-step argument that she met the first prong of § 2 based on evidence that certain socioeconomic circumstances disparately impact minorities, and this disparate impact would combine with a lack of certain third-party ballot collectors to lessen minorities' opportunities in the political process. We reject this argument. Feldman's evidence of differences in the socioeconomic situation of minorities and non-minorities does not satisfy the first prong of the § 2 test because it does not show that H.B. 2023 causes a protected minority group to have less opportunity than other members of the electorate to participate in the political process. See Gingles, 478 U.S. at 44 n.8, 106 S.Ct. 2752. Proof of a causal connection between the challenged voting practice and a prohibited result is "crucial," Gonzalez, 677 F.3d at 405 (citing Salt River, 109 F.3d at 595), and Feldman points to no evidence that the restriction on third-party ballot collection causes minorities to have less opportunity to vote than non-minorities. Indeed, although H.B. 2023 was in effect for all but the first three days of early voting for the Primary Election, the record does not include any testimony by minority voters that their ability to participate in the political process was affected by the inability to use a third-party ballot collector. The district court did not clearly err in declining to make the inference urged by Feldman (i.e., that due to minorities' socioeconomic status, they were likely to have fewer opportunities than non-minorities to participate in the political process if they could not use certain third-party ballot collectors) in the absence of evidence supporting that inference.
We rejected a similar argument in Gonzalez. As in this case, the plaintiff in Gonzalez argued that a law requiring prospective voters to obtain a photo identification before they cast ballots at the polls violated § 2 because it had a statistically significant disparate impact on Latino voters. 677 F.3d at 406. To support this argument, the plaintiff presented evidence "of Arizona's general history of discrimination against Latinos and the existence of racially polarized voting." Id. at 407. Despite this general history of discrimination, we affirmed the district court's rejection of this claim, because the plaintiff was unable
In short, the district court did not clearly err in concluding that Feldman adduced no evidence showing that H.B. 2023 would have an impact on minorities different than the impact on non-minorities, let alone that the impact would result in less opportunity for minorities to participate in the political process as compared to non-minorities.
Feldman also contends that the district court erred in concluding that her facial challenge to H.B. 2023 on constitutional grounds was unlikely to succeed on the merits. We first lay out the analytical framework for facial challenges to voting laws under the Fourteenth and First Amendments, and then consider Feldman's challenges.
The Constitution grants the States a "broad power to prescribe the `Times,
However, when a state exercises its power and discharges its obligation "[t]o achieve these necessary objectives," the resulting laws "inevitably affect[] — at least to some degree — the individual's right to vote and his right to associate with others for political ends." Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). Therefore, the state's "power is not absolute, but is `subject to the limitation that [it] may not be exercised in a way that violates ... specific provisions of the Constitution.'" Wash. State Grange, 552 U.S. at 451, 128 S.Ct. 1184 (alterations in original) (quoting Williams, 393 U.S. at 29, 89 S.Ct. 5). While the Constitution does not expressly guarantee the right to vote in state and federal elections, the Fourteenth Amendment protects a citizen's right "to participate in elections on an equal basis with other citizens in the jurisdiction." Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). That is, "once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment." Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Similarly, "[w]hile the freedom of association is not explicitly set out in the [First] Amendment," Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), "the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment... as an indispensable means of preserving other individual liberties," Roberts v. U.S. Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). This right includes the ability "to associate ... for the advancement of common political goals and ideas," Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), and "the ability of citizens to band together in promoting among the electorate candidates who espouse their political views," Cal. Democratic Party v. Jones, 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000). The Supreme Court has long recognized that "some forms of `symbolic speech' [are] deserving of First Amendment protection." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 65, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). However, First Amendment protection extends "only to conduct that is inherently expressive." Id. at 66, 126 S.Ct. 1297. Conduct is inherently expressive if it "is intended to be communicative and ... in context, would reasonably be understood by the viewer to be communicative." Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). For instance, burning
The Supreme Court has explained that constitutional challenges to election laws "cannot be resolved by any `litmus-paper test' that will separate valid from invalid restrictions." Anderson, 460 U.S. at 789, 103 S.Ct. 1564. Rather, "a more flexible standard applies." Burdick, 504 U.S. at 434, 112 S.Ct. 2059. "A court considering a challenge to a state election law must weigh [1] `the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against [2] `the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration [3] `the extent to which those interests make it necessary to burden the plaintiff's rights.'" Id. (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564). This framework is generally referred to as the Anderson/Burdick balancing test. In applying this test, we: (1) identify and determine the magnitude of the burden imposed on voters by the election law; (2) identify the State's justifications for the law; and (3) weigh the burden against the State's justifications. The severity of the burden that an election law imposes "is a factual question on which the plaintiff bears the burden of proof." Democratic Party of Haw. v. Nago, 833 F.3d 1119, 1122-24 (9th Cir. 2016) (citing Cal. Democratic Party, 530 U.S. 567, 120 S.Ct. 2402); Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th Cir. 2007) (noting that whether an election law imposes a severe burden is an "intensely factual inquiry").
"[T]he severity of the burden the election law imposes on the plaintiff's rights dictates the level of scrutiny applied by the court." Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 729 (9th Cir. 2015) (quoting Nader v. Cronin, 620 F.3d 1214, 1217 (9th Cir. 2010) (per curiam)). "This is a sliding scale test": when the burden imposed is severe, not only the "more compelling the state's interest must be," Ariz. Green Party v. Reagan, 838 F.3d 983, 988 (9th Cir. 2016), but the regulation also "must be `narrowly drawn to advance a state interest of compelling importance,'" Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)).
By contrast, "when a state election law provision imposes only `reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, `the State's important regulatory interests are generally sufficient to justify' the restrictions." Id. (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564); see also Ariz. Green Party, 838 F.3d at 988 ("[A] state may justify election regulations imposing a lesser burden by demonstrating the state has important regulatory interests." (quoting Ariz. Libertarian Party, 798 F.3d at 729-30)). While Burdick does not call for rational basis review, Pub. Integrity All., 836 F.3d at 1025, it likewise specifically declined to require that all voting regulations be narrowly tailored and subjected to strict scrutiny, see Burdick, 504 U.S. at 433, 112 S.Ct. 2059. Rather, Burdick held that when a statute imposes only a limited burden, the "`precise interests' advanced by the State" alone may be "sufficient to defeat [a plaintiff's] facial challenge," Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (controlling opinion of Stevens, J.) (quoting Burdick, 504 U.S. at 434, 112 S.Ct. 2059). See also Pub. Integrity
Finally, the Supreme Court has warned that facial challenges "are best when infrequent," Sabri v. United States, 541 U.S. 600, 608, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004), and "are disfavored for several reasons" in the election law context in particular, Wash. State Grange, 552 U.S. at 450, 128 S.Ct. 1184. For instance, Arizona "has had no opportunity to implement [H.B. 2023], and its courts have had no occasion to construe the law in the context of actual disputes arising from the electoral context, or to accord the law a limiting construction to avoid constitutional questions." Id. "Claims of facial invalidity often rest on speculation," and "raise the risk of `premature interpretation of statutes on the basis of factually barebones records.'" Id. (quoting Sabri, 541 U.S. at 609, 124 S.Ct. 1941). When faced with underdeveloped "evidence regarding the practical consequences of [H.B. 2023], we find ourselves in the position of Lady Justice: blindfolded and stuck holding empty scales." Ariz. Green Party, 838 F.3d at 990 (quoting Ariz. Libertarian Party, 798 F.3d at 736 (McKeown, J., concurring)). Accordingly, plaintiffs asserting a facial challenge "bear a heavy burden of persuasion," the magnitude of which the Supreme Court has reminded us "to give appropriate weight." Crawford, 553 U.S. at 200, 128 S.Ct. 1610.
We now turn to Feldman's Fourteenth Amendment claim. Feldman claims that the district court made a number of errors in determining that she was unlikely to prevail on the merits of her claim that H.B. 2023 imposes an undue burden on Arizona voters that is not outweighed by the State's asserted interests.
Feldman first argues that the district court erred in its application of the Anderson/Burdick framework. Under this framework, a district court must first consider the burden posed by H.B. 2023. Burdick, 504 U.S. at 434, 112 S.Ct. 2059. In considering this burden, we must take care to avoid the "sheer speculation" that often accompanies the assessment of burdens when considering facial challenges. Wash. State Grange, 552 U.S. at 454, 128 S.Ct. 1184; see also Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 866 (9th Cir. 2008) ("In any event, a speculative, hypothetical possibility does not provide an adequate basis to sustain a facial challenge.").
Here, the district court did not clearly err in finding that H.B. 2023 did not "significantly increase the usual burdens of voting." As an initial matter, H.B. 2023 on its face imposes less of a burden than the challenged law did in Crawford. Crawford considered the impact of Indiana's voter-ID law, which required voters who lacked photo ID to sustain "the inconvenience of making a trip to the [state Bureau of Motor Vehicles], gathering the required documents, and posing for a photograph" to obtain the requisite identification. 553 U.S. at 198, 128 S.Ct. 1610. In the alternative, a voter who could not or did not want to obtain a photo ID could submit a provisional ballot and "travel to the circuit court clerk's office within 10 days to execute the required affidavit" accompanying the provisional ballot. Id. at 199, 128 S.Ct. 1610. The Court found that the law imposed "only a limited burden on voters' rights." Id. at 203, 128 S.Ct. 1610 (quoting Burdick, 504 U.S. at 439, 112 S.Ct. 2059); see id. at 209, 128 S.Ct. 1610 (Scalia, J., concurring in the judgment).
Further, any burden imposed by H.B. 2023 is mitigated by the availability of alternative means of voting. The lead opinion in Crawford held that the burden imposed by Indiana's voter-ID law was "mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots," even though doing so required a voter to make two trips: the first to vote and the second to execute the required affidavit. 553 U.S. at 199, 128 S.Ct. 1610. Here, H.B. 2023 could at most require that a voter make that first trip — to vote in the first instance. Because making two trips does not represent a burden "over the usual burdens of voting" in Crawford, id. at 198, 128 S.Ct. 1610, the district court could reasonably determine that the single trip required here does not represent such a burden, either. Although Feldman contends that "thousands" of Arizona voters rely on third-party ballot collection in order to cast their early ballots," the record does not support her additional claim that without ballot collection by third parties disqualified by H.B. 2023, many Arizona voters "would not have been able to vote in prior elections."
Feldman also argues that the district court erred in failing to consider the burdens imposed on specific groups of voters for whom H.B. 2023 poses a more serious challenge. We disagree, because the evidence in the record was insufficient for such an analysis. While a court may consider a law's impact on subgroups, there must be sufficient evidence to enable a court "to quantify the burden imposed on the subgroup." Pub. Integrity All., 836 F.3d at 1024 n.2 (citing Crawford, 553 U.S. at 199-203, 128 S.Ct. 1610; id. at 212-17, 128 S.Ct. 1610 (Souter, J., dissenting)); see also Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 631 (6th Cir.2016) (holding that Crawford may permit "weighing the `special burden' faced by `a small number of voters'" when there is "quantifiable evidence from which an arbiter could gauge the frequency with which this narrow class of voters has been or will become disenfranchised," but that in the absence of such evidence, a court should "consider the burden that the provisions place on all ... voters." (quoting Crawford, 553 U.S. at 200, 128 S.Ct. 1610)), reh'g en banc denied, (6th Cir. Oct. 6, 2016). In Crawford, the Court acknowledged that the photo ID requirement placed "a somewhat heavier burden ... on
Because the district court did not clearly err in its determination of the burden imposed by H.B. 2023 on the right to vote, we proceed to the second step of the Anderson/Burdick framework and consider Arizona's interests. Feldman does not dispute that Arizona's interest in preventing absentee-voting fraud and maintaining public confidence in elections are "relevant and legitimate state interests," Crawford, 553 U.S. at 191, 128 S.Ct. 1610, nor could she. "A State indisputably has a compelling interest in preserving the integrity of its election process." Purcell, 549 U.S. at 4, 127 S.Ct. 5 (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989)). "While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear." Crawford, 553 U.S. at 196, 128 S.Ct. 1610. Similarly, "public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process." Id. at 197, 128 S.Ct. 1610. And as the district court correctly recognized, absentee voting may be particularly susceptible to fraud, or at least perceptions of it. See Crawford, 553 U.S. at 225, 128 S.Ct. 1610 (Souter, J., dissenting); Griffin v. Roupas, 385 F.3d 1128, 1131 (7th Cir. 2004); see also United States v. Townsley, 843 F.2d 1070 (8th Cir. 1988). The district court did not err in crediting Arizona's important interest in preventing fraud even in the absence of evidence that voter fraud had been a significant problem in the past. In Crawford, the Court noted that "[t]he record contains no evidence of any such fraud actually occurring," but nonetheless concluded that "not only is the risk of voter fraud real but ... it could affect the outcome of a close election." 553 U.S. at 194-96, 128 S.Ct. 1610; see also Ohio Democratic Party, 834 F.3d at 632-33; Frank, 768 F.3d at 749-50. Courts recognize that legislatures need not restrict themselves to a reactive role: legislatures are "permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively." Munro v. Socialist Workers Party, 479 U.S. 189, 195-96, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986).
Feldman also contends that the district court made several legal errors in assessing Arizona's interests and in weighing them against the burden on voters. First, Feldman argues that the district court erred in holding that "laws that do not significantly increase the usual burdens of voting do not raise substantial constitutional concerns." We disagree. It is axiomatic
Second, Feldman argues that the district court failed to consider the means-end fit between Arizona's interests in preventing absentee-voting fraud and eliminating the perception of fraud on the one hand and the burdens imposed on voters on the other hand. Relying on a vacated Sixth Circuit opinion, see Ohio State Conference of the NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014), vacated, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014), Feldman argues that Arizona was required to "explain why the particular restriction imposed is actually necessary," id. at 545. Again, we disagree. The lead opinion in Crawford held that a limited burden on voters' rights imposed by the challenged law was outweighed by two "unquestionably relevant" interests offered by the state, without considering the fit between those interests and the voter-ID law. See 553 U.S. at 203, 128 S.Ct. 1610. And as several of our sister circuits have recognized, it is "practically self-evidently true" that implementing a measure designed to prevent voter fraud would instill public confidence. Ohio Democratic Party, 834 F.3d at 633 (citing Crawford, 553 U.S. at 197, 128 S.Ct. 1610); see Frank, 768 F.3d at 750 (noting that Crawford took "as almost self-evidently true" the relationship between a measure taken to prevent voter fraud and promoting voter confidence). By asserting its interest in preventing election fraud and promoting public confidence in elections, essentially the same interests as in Crawford, Arizona bore its burden of establishing "important regulatory interests" sufficient to justify the minimal burden imposed by H.B. 2023. Accordingly, the district court could reasonably conclude that Arizona's means — restricting third-party ballot collection — matched the desired ends of preventing voter fraud and promoting voter confidence in the electoral system.
For similar reasons, we reject Feldman's argument that the district court erred in not considering whether Arizona's "goals could have been achieved through less burdensome means." Neither the Supreme Court nor we have required a state to prove there is no less restrictive alternative when the burden imposed is minimal. Burdick expressly declined to require that restrictions imposing minimal burdens on voters' rights be narrowly tailored. See
In sum, we conclude that the district court did not clearly err in finding that H.B. 2023 imposed a minimal burden on voters' Fourteenth Amendment right to vote, in finding that Arizona asserted sufficiently weighty interests justifying the limitation, and in ultimately concluding that Feldman failed to establish that she was likely to succeed on the merits of her Fourteenth Amendment challenge.
We next consider Feldman's First Amendment claim. According to Feldman, the district court undervalued the expressive significance of ballot collection when it concluded that she was unlikely to succeed on the merits of her First Amendment freedom of association claim. Feldman contends that through ballot collection, individuals and organizations convey their support for the democratic process and for particular candidates and political parties. For example, declarant Ian Danley stated that his coalition, One Arizona, helps its "voters ensure that their voices are heard on Election Day" by "collecting and personally delivering their signed, sealed early ballots." Similarly, declarant Rebekah Friend stated that under H.B. 2023, the Arizona State Federation of Labor will have difficulty fulfilling its goal of encouraging its members to register and vote because it "will no longer be able to help its members or other voters vote by taking their signed, sealed early ballots to the Recorder's office." Therefore, Feldman argues, "ballot collectors convey that voting is important not only with their words but with their deeds."
We first consider whether ballot collection is expressive conduct protected under the First Amendment. See Clark, 468 U.S. at 293 n.5, 104 S.Ct. 3065 ("[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. To hold otherwise would be to create a rule that all conduct is presumptively expressive."). We agree with the district court that it is not. Even if ballot collectors intend to communicate that voting is important, "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Unlike burning an American flag or wearing a military medal, ballot collection does not convey a message that "would reasonably be understood by the viewer to be communicative." Swisher, 811 F.3d at 311 (quoting Clark, 468 U.S. at 294, 104 S.Ct. 3065). Rather, a viewer
While political organizations undoubtedly engage in protected activities, ballot collection does not acquire First Amendment protection merely because it is carried out along with protected activities and speech. See Forum for Acad. & Institutional Rights, Inc., 547 U.S. at 66, 126 S.Ct. 1297 (concluding that "combining speech and conduct" is not enough to create expressive conduct); Voting for Am., 732 F.3d at 389 ("The Court also has repeatedly explained that non-expressive conduct does not acquire First Amendment protection whenever it is combined with another activity that involves protected speech."). Because H.B. 2023 regulates only third-party ballot collection, which is non-expressive conduct, the district court did not err in concluding that H.B. 2023 does not implicate the First Amendment.
Moreover, even if we assumed that H.B. 2023 implicates the First Amendment, we agree with the district court's conclusion that Arizona's regulatory interests in preventing voter fraud justifies the minimal burden that H.B. 2023 imposes on associational rights under the Anderson/Burdick test. Looking first at the burden imposed by H.B. 2023, the district court did not clearly err in finding that H.B. 2023 does not impose a severe burden. H.B. 2023 does not prevent individuals and organizations from encouraging others to vote, educating voters, helping voters register, helping voters complete their early ballots, providing transportation to voting sites or mailboxes, or promoting political candidates and parties. Ariz. Rev. Stat. § 16-1005; see, e.g., Timmons, 520 U.S. at 361, 117 S.Ct. 1364 (concluding that the burden a Minnesota law imposed on a political party's First and Fourteenth Amendment rights was not severe because the party remained "free to endorse whom it likes, to ally itself with others, to nominate candidates for office, and to spread its message to all who will listen"). H.B. 2023 does not prevent individuals and organizations from associating "for the advancement of common political goals and ideas," Timmons, 520 U.S. at 357, 117 S.Ct. 1364, or from "[banding] together in promoting among the electorate candidates who espouse their political views," Cal. Democratic Party, 530 U.S. at 574, 120 S.Ct. 2402.
Turning to Arizona's regulatory interests, we conclude for the reasons discussed supra at 389-90 that the district court did not clearly err in finding that Arizona has important regulatory interests in preventing voter fraud and maintaining the integrity of the electoral process. Accordingly, the district court could properly conclude that Arizona's important regulatory interests are sufficient to justify any minimal burden on associational rights, as discussed supra at 391.
In sum, we conclude that ballot collection is not expressive conduct implicating the First Amendment, but even if it were, Arizona has an important regulatory interest justifying the minimal burden that H.B. 2023 imposes on freedom of association. The district court did not err in concluding that the Feldman was unlikely to succeed on the merits of her First Amendment claim.
Having concluded that the district court did not err in holding that Feldman failed
Even if Feldman had raised serious questions as to the merits of her claims, and also shown a likelihood of irreparable harm, Winter, 555 U.S. at 22, 129 S.Ct. 365, relief would not be warranted because Feldman has not shown that "the balance of hardships tips sharply" in her favor or that an injunction is in the public interest. All. for the Wild Rockies, 632 F.3d at 1135. This case is not one in which "qualified voters might be turned away from the polls." Purcell, 549 U.S. at 4, 127 S.Ct. 5. Rather, it is one in which voters are precluded from giving their ballots to third-party ballot collectors and organizations must use an alternative means of mobilizing their voters. Cf. Lair, 697 F.3d at 1215 (the existence of "other options for engaging in political speech" militated in favor of staying an injunction against enforcement of a state law restricting one avenue of speech). Indeed, the district court found from the evidence that many voters who entrust their ballots to collectors do so merely for convenience, and we cannot disturb this finding. See Hinkson, 585 F.3d at 1262 (noting our deference to findings that are plausible and supported by the record). The record does not establish that the organizational plaintiffs' need, in light of H.B. 2023, to reallocate resources as part of a reconfigured get-out-the-vote effort constitutes a substantial hardship.
The impact of H.B. 2023 on prospective voters, which the district court found largely to be inconvenience, does not outweigh the hardship on Arizona, which has a compelling interest in the enforcement of its duly enacted laws. See Nken v. Holder, 556 U.S. 418, 436, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (recognizing the public interest in the enforcement of the law); Veasey v. Perry, 769 F.3d at 895 ("When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws."). As a general matter, Arizona's regulation of the early voting process advances its interest in preserving ballot secrecy and preventing "undue influence, fraud, ballot tampering, and voter intimidation." Miller, 179 Ariz. at 180, 877 P.2d 277. The interest in preventing fraud is "compelling," Purcell, 549 U.S. at 4, 127 S.Ct. 5, and for Arizona no less than for Feldman, there are no "do over" elections; "the State cannot run the election over again" with the tools H.B. 2023 provides to combat possible fraud. Veasey v. Perry, 769 F.3d at 896. On this record, then, the balance cannot be said to tip "sharply" in Feldman's favor. All. for the Wild Rockies, 632 F.3d at 1135.
We turn finally to the public interest, an inquiry that "primarily addresses impact on non-parties," Bernhardt v. Los Angeles County, 339 F.3d 920, 931 (9th Cir. 2003), but that closely tracks Arizona's own interests, see Nken, 556 U.S. at 435, 129 S.Ct. 1749. Like Arizona itself, its citizens "have a deep interest in fair elections." Lair, 697 F.3d at 1215. Even in the absence of actual fraud, the prospect of early voting fraud may undermine public confidence in the results of the election. Purcell, 549 U.S. at 4, 127 S.Ct. 5. At the very least, H.B. 2023 assists in exorcizing the specter of illegitimacy that may hang over the electoral process in the minds of some citizens.
Feldman is therefore not only unlikely to prevail on the merits, but, as the district court concluded, her interest in avoiding possible irreparable harm does not outweigh Arizona's and the public's mutual interests in the enforcement of H.B. 2023 pending final resolution of this case. In reaching this conclusion, we heed the Supreme Court's admonition to consider the harms "specific to election cases," Purcell, 549 U.S. at 4, 127 S.Ct. 5, attendant on enjoining the enforcement of a state's voting law while it is currently in play, and just weeks before an election.
THOMAS, Chief Judge, dissenting:
Arizona has criminalized one of the most popular and effective methods by which minority voters cast their ballots. Because this law violates the Constitution and the Voting Rights Act, I must respectfully dissent.
Like most states, Arizona allows voters to cast a ballot on election day at a polling place, or to cast an early absentee vote, either in person or by mail. A.R.S. § 16-541. Early voting has become increasingly popular in Arizona, as evidenced by the fact that 81% of ballots cast in the last Presidential election were cast by early voting, a 12% increase from the 2012 election. An important reason for the increase in early voting is that Arizona has substantially reduced the number of polling places, resulting in extraordinarily long lines, with voters waiting many hours to cast their ballots. In one urban area, there is one voting center for nearly 70,000 registered voters. In some precincts in Maricopa County, voters waited for four hours to cast their ballots in the Presidential Preference Primary election earlier this year. In other precincts, the wait was up to six hours. Compounding the problem is that, in Maricopa County in particular, polling places change with each election, and the County is using a different polling place system for the general election than it did in the Presidential Preference election earlier this year.
As the use of early voting has skyrocketed in Arizona, voters have increasingly used friends, organizations, political parties, and campaign workers to transmit their ballots. Some efforts are typical of "get-out-the-vote" campaigns by partisan groups; others are targeted to provide a service to those who cannot get to the polls. Because of geographic and other impediments to voting, voting by ballot collection has become a critical means for minority voters to cast their ballots. A substantial number of rural minority voters live in areas without easy access to mail service. In urban areas, many minority voters are socioeconomically disadvantaged, meaning that they may lack reliable mail service and have to rely on public transportation to get to polling places.
Nonetheless, Arizona enacted the law at issue, House Bill 2023, codified at A.R.S. § 16-1005 (H)-(I), which imposes felony criminal sanctions for non-household members or caregivers who collect early ballots from others. Plaintiffs filed this lawsuit challenging the law under the Voting Rights Act of 1965 and the First and Fourteenth Amendments to the United States Constitution. The district court denied the
We review the denial of a preliminary injunction for abuse of discretion. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). A district court abuses its discretion if its analysis is premised on an inaccurate view of the law. Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th Cir. 2014). In such instances, we review de novo the legal premises underlying the preliminary injunction. Id.
The district court erred in its analysis of the plaintiffs' Fourteenth Amendment claims. First, it erroneously employed a rational basis review standard, when the appropriate standard was a "balancing and means-end fit analysis." Pub. Integrity All. v. City of Tucson, 836 F.3d 1019, 1025 (9th Cir. 2016) (en banc). As Public Integrity Alliance recognized, the Supreme Court established the appropriate standard of review for laws regulating the right to vote in Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). As we explained in Public Integrity Alliance:
Pub. Integrity All., 836 F.3d at 1024.
However, rather than reviewing H.B. 2023 under a balancing and means-end fit analysis, the district court conducted a rational basis review, committing legal error.
The burden of the law on Arizona minority voters is substantial and occurs in both urban and rural areas of the state. The uncontradicted evidence presented to the district court showed that a substantial number of minority voters used ballot collection as their means of voting. As Maricopa Board of Supervisors Steve Gallardo testified: "ballot collectors are used in large part by Latino and Native American groups and [ballot collecting] has come to be critical in enabling voters in those communities to exercise their fundamental right to vote."
The record demonstrated that, in many rural areas with a high proportion of minority voters, home mail delivery was not available, and it was extremely difficult to travel to a post office. No one contested the fact that the rural communities of Somerton and San Luis, which are comprised of 95.9% and 98.7% Hispanic voters, respectively, were without home mail delivery and reliable transportation. As the representative for that district testified, "[b]ecause many of these voters are elderly and have mobility challenges, it is a common practice in this area to have one neighbor pick up and drop off mail for others on their street as a neighborly service." The representative noted that there is only one post office, which is located across a highway crowded with cars waiting to cross the border, and is virtually inaccessible by foot.
Another example of the impact of the law on minority voters is the Tohono O'odham Indian Nation. The Tohono O'odham reservation constitutes over 2.8 million acres in the Sonoran desert. It is an area larger than Rhode Island and Delaware, and approximates the size of Connecticut. It has about 14,000 registered voters. It does not have home mail delivery. It has one post office, which is over 40 miles away from many residents. The evidence in this case shows that restrictions on ballot collection affect the Tohono O'odham tribe significantly. No one contested the fact that the members of the Tohono O'odham Indian Nation have limited access to a postal service and no home mail delivery.
Similarly, no one disputed that members of the Cocopah Indian Tribe do not have home mail delivery or easy access to a post office. The Cocopah Reservation is located along the lower Colorado River, south of Yuma, Arizona. The Cocopah Reservation comprises approximately 6,500 acres, with approximately 1,000 tribal members who live and work on or near the Reservation.
As to urban areas, record evidence demonstrated that the burden of the law affected minority voters the most because of socioeconomic factors. Minority voters in urban areas were more likely to be economically
Martin Quezada, State Senator for Arizona's Twenty-Ninth Senate District testified that:
The President of a nonprofit organization comprised of Latino citizens and community leaders testified that many minorities required assistance in making sure that they were following the proper voting procedure, and in low income areas they were concerned about the security of their mailboxes.
Further complicating voting in Arizona's urban areas is that there are not only few places to vote, but that the polling locations change frequently. Indeed, because the City of Phoenix elections are run independently by the City, a voter might have to go to two different polling places to cast ballots on election day. According to the Executive Director of a nonprofit organization working primarily in low-income African-American and Latino neighborhoods, this confusion significantly burdened those communities because many minorities had difficulty navigating the voting process, especially those Spanish-speaking voters who were not also fluent in English. The record also showed that election administrators were prone to make errors with Spanish-language materials. Those voters encounter significant hurdles at polling places. Thus, the opportunity for early voting is especially important for those citizens.
The district court and the State dismiss the burdens imposed on minority voters seeking to vote early as attacks on a process that provides only a "more convenient" means of voting. However, when 80% of the electorate uses early absentee voting as the method by which they cast their ballots, the method has transcended convenience and has become instead a practical necessity. Thus, when severe burdens are placed on this form of voting, it has a significant impact on elections and the right to vote.
Against this burden, the state's justification for the law was weak. The state identified its interest as preventing voter fraud. However, the sponsors of the legislation could not identify a single example of voter fraud caused by ballot collection. Not one. Nor is there a single example in the record of this case. The primary proponent of the legislation admitted there were no examples of such fraud, but that the legislation was based on the speculative theory that fraud could occur. A study by the Arizona Republic found that, out of millions of ballots cast from 2005 to 2013, there were only 34 cases of fraud prosecution. All involved voting by felons or non-citizens. None involved any allegation of fraud in ballot collection. And none of the
Thus, when one balances the serious burdens placed on minorities by the law against the extremely weak justification offered by the state, one can only conclude under the Anderson-Burdick analysis that the plaintiffs have established a likelihood of success on the merits of their Fourteenth Amendment claim.
The district court also erred in denying the motion for a preliminary injunction based on the Voting Rights Act claims. The Voting Rights Act of 1965 "was designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century." State of S.C. v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) abrogated by Shelby Cty., Ala. v. Holder, ___ U.S. ___, 133 S.Ct. 2612, 186 L.Ed.2d 651
The central purpose of the Act was "[t]o enforce the fifteenth amendment to the Constitution of the United States." Chisom v. Roemer, 501 U.S. 380, 383, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (quoting Pub.L. 89-110, 79 Stat. 437, 42 U.S.C. § 1973 et seq.). The Fifteenth Amendment provides that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. Const. amend. XV, § 1.
At issue in this case is § 2 of the Act, which is "a restatement of the Fifteenth Amendment." Roemer, 501 U.S. at 392, 111 S.Ct. 2354. Section 2 provides, without limitation, that any voting qualification that denies citizens the right to vote in a discriminatory manner violates the Voting Rights Act. 42 U.S.C. § 1973; see also Allen, 393 U.S. at 566-67, 89 S.Ct. 817 (noting that Congress intentionally chose the expansive language "voting qualifications or prerequisite to voting, or standard, practice, or procedure" for § 2 so as to be "all-inclusive of any kind of practice" that might be used by states to deny citizens the right to vote (internal quotation marks omitted)). As amended in 1982, § 2 makes "clear that certain practices and procedures that result in the denial or abridgment of the right to vote are forbidden even though the absence of proof of discriminatory intent protects them from constitutional challenge." Roemer, 501 U.S. at 383-84, 111 S.Ct. 2354.
To succeed on a § 2 claim, a plaintiff must show (1) that "the challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice" and (2) "that burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class." League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014) (internal quotations omitted); see also Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016).
The district court made a number of legal errors in its analysis of the § 2 claims, warranting reversal.
The district court erred in holding, as a matter of law, that § 2 requires proof of the disparate impact of a law by "quantitative or statistical evidence comparing the proportion of minority versus white voters who rely on others to collect their early ballots." As the State concedes, there is no case law supporting this requirement; the district court relied only on cases it thought "strongly suggested" it.
Although quantitative or statistical measures of comparing minority and white voting patterns certainly may provide important analytic evidence, the district court erred in concluding that they were the exclusive means of proof. Indeed, the district court's conclusion is belied by the words of the Voting Rights Act itself, which provides that a violation of § 2 is "based on the totality of the circumstances." 52 U.S.C. § 10301(b) (emphasis
Even if we leave aside the irreconcilable conflict between the district court's proposed rule and the requirements of the governing statute, the district's approach is still fatally flawed.
First, quantitative measurement of the effect of a rule on the voting behavior of different demographic populations must necessarily occur after the election. One cannot statistically test the real world effect of a rule in the abstract; it can only be measured by actual voting data. In other words, imposition of the district court's proposed rule would mean that there could never be a successful pre-election challenge of the burdens placed on minority voting opportunity because no data will have been generated or collected. The analysis could only occur after the harm had been inflicted. That result cannot be squared with the broad remedial purposes of the Voting Rights Act. The Fifth Circuit, in rejecting an approach similar to the district court's, acknowledged this problem, observing that requiring such proof would "present[] problems for pre-election challenges ... when no such data is yet available." Veasey, 830 F.3d at 260.
Second, the relevant data is not available in Arizona. The State concedes that it does not collect the necessary data, and asserts that it should not bear that burden in the
Third, the district court acknowledged the difficulty of obtaining the data because "election and other public records often do not include racial or ethnic data," and noted that "[t]here is no getting around this problem." Nonetheless, the court held that the statute still required a threshold statistical showing, even though collecting such evidence was likely impossible. That was not the intent of the Voting Rights Act, and it is just such a circumstance that requires assessment of the "totality of the circumstances."
Fourth, in its examination of the plaintiffs' evidence, the district court erred in its comparative analysis. It faulted the plaintiffs for not showing comparative data from other rural white-centric areas. But that is not the examination required by the Voting Rights Act. Section 2 examines whether "members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Veasey, 830 F.3d at 305; League of Women Voters of N.C., 769 F.3d at 240 (emphasis added). It does not test opportunity against "other members of the electorate" who are "similarly situated." Thus, contrary to the district court's analysis, the comparison is not with similarly situated white groups, but rather with the voting population as a whole. If the district court's assumption were correct, then literacy and poll tax statutes would be constitutional because they placed the burdens on illiterate and poor whites and blacks equally. Instead, the Voting Rights Act focuses on the burdens disproportionately place on minorities in comparison with the general voting population. Native American voters living on reservations have different burdens as to transportation and mail access than urban white voters. A state may not evade the requirements of § 2 by arguing that it equally applies to a subset of white voters constituting a minuscule percentage of the white vote, when the overall effect is the suppression minority voting.
And even if we were to take the district court's analysis at face value, it fails in consideration of the evidence in this case. The district court's conclusion is at odds with the evidence showing the law disproportionately burdens minorities. I have previously described the situation faced by the Tohono O'odham Nation, situated on 2.8 million acres, with limited access to a post office and no home mail delivery. Everyone concedes that there is no white population analogue. There are no white reservations in Arizona. There is no comparably sized rural area that encompasses a white-majority population. The record evidence was plain and uncontroverted: H.B. 2023 places a disproportionate burden on the voting opportunities
The evidence provided by the plaintiffs showed a similar pattern in urban areas. Minority voters encountered significant burdens in exercising their right to vote. The reduced number of polling places meant that voters had to wait hours in line to cast ballots. Low income voters had difficulty getting to the polls because of their dependence on public transportation. Voters who were not fluent in English had difficulty determining where to vote. Statistical evidence is not needed to see that without ballot collecting, these voters will have less opportunity than other members of the electorate to participate in the political process.
In sum, the district court committed legal error by requiring the plaintiffs to show proof of the disparate impact of the law by "quantitative or statistical evidence comparing the proportion of minority versus white voters who rely on others to collect their early ballots." That formulation is at odds with the governing statute, which requires analysis by "totality of the circumstances" of whether members of the affected minority class "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 52 U.S.C. § 10301(b).
The district court also erred as a matter of law in its assessment of the plaintiffs' burden of proof. "[T]he burden of proof at the preliminary injunction phase tracks the burden of proof at trial ...." Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011). In a voting rights case, the plaintiff bears the burden of proof at trial and must show a violation by a preponderance of the evidence. Bartlett v. Strickland, 556 U.S. 1, 19-20, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009). Thus, the parties seeking a preliminary injunction in this case must show they are likely to prevail on the merits; if the plaintiffs satisfy that burden, then the opposing parties bear the burden of rejoinder. Thalheimer, 645 F.3d at 1116.
Here, the district court rejected plaintiffs' tendered evidence because it was not "compelling." At the preliminary injunction stage, the plaintiff is not required to present "compelling" evidence, but only to establish a likelihood of success by a preponderance of the evidence. The district court also rejected the tendered evidence as "anecdotal," but the Supreme Court has considered and credited just such evidence. At the preliminary injunction stage, plaintiffs were obligated to show a likelihood of success in showing that "members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."
Much of the evidence tendered by the plaintiffs as to this burden was not controverted. As I have noted, no one contested the fact that the rural communities of Somerton and San Luis, which are comprised of 95.9% and 98.7% Hispanic voters, respectively, were without home mail delivery and reliable transportation. No one contested the fact that the members of the Tohono O'odham Indian Nation do not have home mail delivery. No one disputed that members of the Cocopah Indian Nation do not have home mail delivery. The plaintiffs submitted voluminous affidavits showing the burden that the restriction on ballot collection would impose on minorities. The State did not contest the affidavits, but simply dismissed the evidence as "anecdotal." Thus, much of the evidence tendered by the plaintiffs as to the disproportionate
However, once the plaintiffs had established the burden on minority voters, the district court did not place the burden of rejoinder on the State. Rather, it categorically rejected evidence based on personal knowledge as "anecdotal," and held that the plaintiffs were required to show that rural white voters were not similarly burdened. In other words, once the plaintiffs had established the burden on minority voters, the district court imposed a higher standard of proof, rather than shifting the burden of rejoinder to the State. The record provides no information as to rural white voters. The district court viewed that as fatal to the plaintiffs' claims. In fact, it meant that the plaintiffs had satisfied their threshold requirements, and the State had failed to rejoin. The district court erred in holding the plaintiffs to a higher evidentiary burden.
The district court did not reach the second prong of the § 2 analysis, namely, whether the burden was in part caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class. Nevertheless, the plaintiffs established a likelihood of success on the second prong.
As to the second part of the analysis, the Supreme Court has identified several factors to be taken into consideration, consistent with the legislative history of the Voting Rights Act, namely:
Gingles, 478 U.S. at 37, 106 S.Ct. 2752. In addition, the Court added that in some cases, there was probative value in inquiring "whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group" and "whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous." Id. (citing S. Rep., at 28-29, U.S.Code Cong. & Admin. News 1982, pp. 206-207).
As to the first factor, the extent of any history of official discrimination in the
The passage of the Voting Rights Act in 1965 caused the suspension of the literacy test in Arizona, but the statute remained in effect until it was repealed in 1972, after Congress banned its use in 1970 through an amendment to the Voting Rights Act. Arizona subsequently unsuccessfully challenged the Congressional ban on literacy tests. Oregon v. Mitchell, 400 U.S. 112, 118, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). In Mitchell, the Court noted that, in Arizona, only two counties out of eight with Hispanic populations in excess of 15% showed voter registration equal to the state-wide average. Id. at 132, 91 S.Ct. 260. In the 1960s, there were a number of initiatives to discourage minority voting in Arizona, such as "Operation Eagle Eye." Under Operation Eagle Eye, minority voters were challenged at the pools on a variety of pretexts, with the goal of preventing minority voting or slowing down the process to create long lines at the polls and discourage voting.
Native Americans in Arizona especially suffered from voting restrictions. Although Native Americans were U.S. citizens, the Arizona Supreme Court held in 1928 that they could not vote because they were under federal guardianship. Porter v. Hall, 34 Ariz. 308, 271 P. 411, 419 (1928). Even after that ban was overruled in 1948 in Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456 (1948), Native Americans faced significant obstacles to voting. See generally, Patty Ferguson-Bohnee, The History of Indian Voting Rights in Arizona: Overcoming Decades of Voter Suppression, 47 Ariz. St. L.J. 1099, 1112 (2015).
Because of its long history of imposing burdens on minority voting, Arizona became one of nine states subject to the pre-clearance requirements of the Voting Rights Act after it was amended in 1975 to protect language minorities. 40 Fed. Reg. 43746. Under the pre-clearance provision, Arizona was required to obtain the approval of the United States Department of Justice before implementing any law affecting the voting rights and representations of minorities. Since 1982, the Department of Justice has vetoed four statewide redistricting plans proposed by Arizona that appeared to discriminate against minorities. When Arizona was subject to the pre-clearance requirements of § 5, a bill precluding or criminalizing ballot collection passed the Arizona legislature, but was ultimately repealed due to concerns about Justice Department approval. In 2013, the Arizona legislature passed a measure banning partisan ballot collection, the violation of which was a misdemeanor. It was repealed after its repeal was placed on the ballot by referendum. The plaintiffs established a likelihood of success as to the first factor.
As to the second factor, the extent to which voting in the elections of the state or political subdivision is racially polarized,
For the reasons described in the discussion of factor one, the plaintiffs demonstrated a likelihood of success as to factor three, namely, the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group.
Because the voting access issues affect the right to vote for a candidate, the fourth factor concerning the candidate slating process is not relevant.
The fifth factor, the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process, falls decisively in favor of the plaintiffs. The plaintiffs tendered significant evidence showing that Arizona minorities suffered in education and employment opportunities, with disparate poverty rates, depressed wages, higher levels of unemployment, lower educational attainment, less access to transportation, residential transiency, and poorer health.
The plaintiffs also provided substantial evidence as to the sixth factor, namely, whether political campaigns have been characterized by overt or subtle racial appeals.
Finally, the plaintiffs provided evidence supporting the seventh Gingles factor, namely, the extent to which members of the minority group have been elected to public office in the jurisdiction. As of January 2016, Hispanics constituted over 30% of the population, but held only 19% of the seats in the Arizona legislature. African-Americans made up 4.7% of the population, but held 1% of the legislative seats. Native Americans fared slightly better, constituting 5.3% of the population and holding 4.4% of the legislative seats.
But the Gingles factors are not the end of the story. We are obligated to look to the "totality of the circumstances." 52 U.S.C. § 10301(b). In this election, in-person voting opportunities are significantly hindered by lack of polling places and significant changes in polling places, all of which have caused extraordinarily long lines for voting in person, up to six hours in some locations. This hindrance to in-person voting falls most heavily on minorities. So, the cited "opportunities" for alternate voting are illusory. H.B. 2023 has now imposed additional significant burdens on minorities as to their ability to cast their ballots early through the popular means of ballot collection. The totality of the circumstances of this election, coupled with the historic discrimination in Arizona's electoral politics are sufficient to satisfy the second § 2 requirement. In sum, the plaintiffs established a likelihood of success in proving the Gingles factors at stage two of the § 2 analysis.
The plaintiffs established a likelihood of success on the § 2 Voting Rights Act claim. They established that the criminalization of ballot collection meant that minority voters had less opportunity than other members of the electorate to elect representatives of their choice, and that the burden in part was caused by or linked to social and historical conditions that have
The district court should have granted the motion for a preliminary injunction. The district court made a number of legal errors. The plaintiffs established that the anti-ballot-collection law significantly burdens the voting rights of minorities, particularly Hispanic and Native American voters. The State's justification of preventing voter fraud was not, and is not, supportable. One of the most popular and effective methods of minority voting is now a crime. H.B. 2023 violates the Constitution and the Voting Rights Act.
There are many burdens and challenges faced in Arizona by Native Americans, Hispanics, African-Americans, the poor, and the infirm who do not have caregivers or family. With H.B. 2023, Arizona has added another: disenfranchisement.
I respectfully dissent.
O'SCANNLAIN, Circuit Judge, with whom CLIFTON, BYBEE, and CALLAHAN, Circuit Judges, join, and with whom N.R. SMITH, Circuit Judge, joins as to Parts I, II, and III, dissenting from the order enjoining the State of Arizona:
The court misinterprets (and ultimately sidesteps) Purcell v. Gonzalez, 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006), to interfere with a duly established election procedure while voting is currently taking place, contrary to the Supreme Court's command not to do so. I thus respectfully dissent from this order enjoining the state of Arizona from continuing to follow its own laws during an ongoing election. And let there be no mistake: despite the majority's pretenses to the contrary, the order granting the injunction is a ruling on the merits, and one based on an unnecessarily hasty review and an unsubstantiated statutory and constitutional analysis.
Some background: On September 23, 2016, the district court denied plaintiffs' motion for a preliminary injunction blocking Arizona from implementing certain provisions in Arizona House Bill 2023 (H.B. 2023). These provisions limit the collection of voters' early ballots to family members, household members, certain government officials, and caregivers. Plaintiffs appealed. A Ninth Circuit motions panel unanimously denied plaintiffs' emergency motion for an injunction pending appeal on October 11. That same panel sua sponte amended its October 11 ruling to expedite the appeal on October 14. A merits panel received briefing, heard oral argument, and issued an opinion on October 28, affirming the district court and denying the request for a preliminary injunction by a two-to-one majority. The case was called en banc the same day the opinion was issued. Eschewing our normal en banc schedule, memo exchange was compressed into five days, as opposed to our customary thirty-five. Now, just two days after the en banc call succeeded, and just four days before Election Day, the majority overturns the district court, a
The Supreme Court counseled against just this type of last-minute interference in Purcell. That case also involved our court's issuing a last-minute injunction against the enforcement of a contested Arizona election law. 549 U.S. at 2-4, 127 S.Ct. 5. The Supreme Court, on October 20, 2006, vacated that injunction, which had been implemented by a Ninth Circuit motions panel on October 5 — more than four weeks before the election. Id. at 2-3, 127 S.Ct. 5. In doing so, the Court stressed the "imminence of the election" and the need to give the case adequate time to resolve factual disputes. Id. at 5-6. Despite Purcell's direct impact on this case, the majority confines that decision much too narrowly, and in its strained attempt to distinguish Purcell, disregards how this eleventh-hour injunction will impact the current election and many elections to come.
At first, it seemed that we might respect Supreme Court precedent this time around, when first the motions panel, and later the three-judge merits panel, wisely determined that no injunction should issue at this stage. Yet, after a third bite at the apple, here we are again — voiding Arizona election law, this time while voting is already underway
The majority recognizes the need to address Purcell and its progeny. But the
First, the majority makes the incomprehensible argument that its injunction "does not affect the state's election processes or machinery." Order at 7. The majority cites no law, fact, or source of any kind in support of this argument, and it is dubious on its face. Of course, H.B. 2023 directly regulates the state's election processes or machinery: it governs the collection of ballots, which obviously is integral to how an election is conducted. But under the majority's Orwellian logic, regulations affecting get-out-the-vote operations are somehow not regulations of the "electoral process." (What are they, then, one might ask? The majority does not tell.) Apparently, the majority believes that only measures that affect the validity of a vote itself (or a voter herself) affect such process. Other courts, in ruling on similar regulations, have rejected the majority's view, and widely held that regulations of many aspects of an election beyond the validity of a vote affect the election process. See, e.g., Lair, 697 F.3d at 1214 (staying injunction of certain campaign finance laws); see also Harris v. Graddick, 593 F.Supp. 128, 135 (M.D. Ala. 1984) (observing that even the racial composition of polling officials could affect the election process).
Tellingly, the majority barely addresses whether enjoining H.B. 2023 will create confusion and disruption in the final days of the election — a key factor in the Purcell decision. 549 U.S. at 4-5, 127 S.Ct. 5 ("Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls."). And, based on this record, how could it? Factual development in the record is sparse. The majority says its injunction will be less disruptive than the Purcell injunction, but offers not a shred of empirical proof for this proposition. Order at 7-10. At this point, it appears that no one knows just how much confusion this court risks by issuing this injunction, after weeks of procedures suggested it would not.
The majority's second argument — that this case is different because it involves a law that imposes criminal penalties — manages to be both irrelevant and incorrect. It is irrelevant because Purcell never says, or
Third, the majority misreads Purcell by inventing a supposed Purcell Court concern that the federal judiciary was "disrupt[ing] long standing state procedures" and then equating it with the majority's desire to preserve the pre-H.B. 2023 status quo. Order at 9. Nowhere in Purcell does the Court mention "long standing state procedures." Proposition 200, the voter identification law at issue in Purcell, had been approved by Arizona voters in 2004 and was not precleared until May of 2005. 549 U.S. at 2, 127 S.Ct. 5. The 2006 election was the first federal election at which it would go into effect. The voter identification law was relatively new, but, "[g]iven the imminence of the election," the Court overturned our injunction which would have returned Arizona to a pre-Proposition 200 world, the majority's so-called "status quo." Id. at 5. Obviously, Purcell was actually concerned with changes to the status quo that had occurred within weeks of an election.
And that status quo can be a law or an injunction that has been in place for just a few months. See Frank, 135 S.Ct. at 7. In Frank, the Supreme Court vacated the Seventh Circuit's September 26, 2014 stay of a preliminary injunction enjoining application of Wisconsin's voter ID law, which had been put in place by the district court in April 2014. By the time the Seventh Circuit issued its decision, the injunction had become the new "status quo," even the dissent had to concede the "colorable basis for the Court's decision." Id. at 7 (Alito, J., dissenting). The dissent noted that given the "proximity of the election," it was "particularly troubling that absentee ballots [relying on the injunction] ha[d] been sent out without any notation that proof of photo identification must be submitted." Id.
Fourth, the argument that "unlike the circumstances in Purcell and other cases, plaintiffs did not delay in bringing this action" continues the majority's pattern of inventing facts. Order at 9. Nowhere in Purcell does the Supreme Court discuss the timing of the plaintiffs' filing. Nowhere does it say that the plaintiffs affected their chances of success by delaying their filing. Nowhere does it use this factor in its analysis. Indeed, as recounted above, the Supreme Court is far more focused on the date of court orders that upset the status quo in relation to the date of the election. See, e.g., League of Women Voters, 135 S.Ct. at 6 (staying an injunction ordered by the Fourth Circuit a month before the election despite the fact that plaintiffs challenged the statute at issue a year prior to the election).
Finally, perhaps betraying its real motivation, the majority bafflingly suggests that our last-minute intervention is required now that the Supreme Court struck down the federal preclearance mechanism in Shelby County v. Holder, ___ U.S. ___, 133 S.Ct. 2612, 2631, 186 L.Ed.2d 651 (2013). But, whatever the majority might think of that opinion, Shelby County has absolutely no relevance to the Court's decision in Purcell.
Even if the majority believes that courts should engage in a heightened review of voting laws after Shelby County — and I stress the Supreme Court has given us absolutely no reason to believe we should — that does not support the notion that such review matters at this stage of litigation. Purcell is plainly about the impact a court order will have on an upcoming (or in our case, ongoing) election, not the merits of the constitutional claim underlying that order. Id. Pre-clearance, Shelby County, and the merits of the challenge to H.B. 2023 are beside the point. Four days before an election is not an appropriate time for a federal court to tell a State how it must reconfigure its election process.
Unfortunately, though I believe the merits should not have been reached until a more thorough review of the case could have been conducted — and ideally more evidence could have been collected, including quantitative data — the majority's decision to consider and then to grant an injunction pending appeal forces the issue. In doing so, and given the current record, the majority, by adopting Chief Judge Thomas's dissent, makes various errors in both its constitutional and federal statutory analysis that further undermine its argument that an injunction is necessary. Order at 6 (adopting the reasoning of Feldman v. Arizona Sec'y of State, 840 F.3d 1057, 1085-98 (9th Cir. 2016) (Thomas, C.J., dissenting)). This situation means we are forced to reach the merits as well. See Order at 6 (citing Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983)).
Unlike the majority, we are persuaded by the analysis of the vacated three-judge panel majority opinion and the district court opinion. Feldman, 840 F.3d at 1062-87; Feldman v. Arizona Sec'y of State, No. CV-16-01065-PHX-DLR, ___ F.Supp.3d ___, 2016 WL 5341180 (D.C. Ariz. Sept. 23, 2016) [hereinafter Feldman (D.C.)]. A few key points, some contained in those opinions, are worth highlighting. One error in the majority's reasoning stands out the most — its failure even to pretend to give any deference to the district court's denial of exactly the same request. See Purcell, 549 U.S. at 5, 127 S.Ct. 5 (concluding that the failure of "the Court of Appeals to give deference to the discretion of the District Court ... was error").
The majority's Fourteenth Amendment analysis falsely claims the district court improperly conducted a "rational basis" review. Feldman, 840 F.3d at 1085-87 (Thomas, C.J., dissenting). Yet, the district court never used the phrase "rational basis," instead it explicitly stated that Arizona "must show [] that it[s law] serves important regulatory interests," after it
The majority argues that H.B. 2023 imposes a "substantial burden" on voting, but this cannot be reconciled with the fact six Justices in Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), found that Indiana's voting ID law imposed either a "a limited burden," id. at 202, 128 S.Ct. 1610 (Stevens, J., writing for three justices), or a "minimal" one, id. at 204, 128 S.Ct. 1610 (Scalia, J., writing for three justices). The majority does not even try to argue that H.B. 2023 imposes more of a burden on voters than the Indiana law, instead it just does not cite Crawford.
The majority argues that the "state's justification for the law was weak." Feldman, 840 F.3d at 1089 (Thomas, C.J., dissenting). This cannot be reconciled with Crawford's language that "[t]here is no question" that a state's interest in preventing voter fraud is an important interest. 553 U.S. at 194-97, 128 S.Ct. 1610 (holding this even though there was no evidence in the record that the particular type of voting fraud the law was trying to prevent has occurred). Arizona's interest in protecting public confidence in elections is also an established important interest. Id. at 197, 128 S.Ct. 1610. Once again the majority "solves" this problem by pretending that Crawford does not exist.
The majority's Voting Rights Act of 1965 (VRA) Section 2 analysis is equally shoddy. 52 U.S.C. § 10301. It concedes that no statistical or quantitative evidence exists in the record. Feldman, 840 F.3d at 1093 (Thomas, C.J., dissenting). It concedes that "the Voting Rights Act focuses on the burdens disproportionately place [sic] on minorities in comparison with the general voting population." Id. at 1093 (emphasis added). It concedes that "[t]he relevant question is whether the challenged practice ... places a disproportionate burden on the opportunities of minorities to vote." Id. at 1092. It concedes the burden lies with the plaintiffs and that "the parties seeking a preliminary injunction in this case must show they are likely to prevail on the merits." Id. at 1094.
Yet, it then argues that the district court erred by asking plaintiffs to show the burden on minority voters was greater than that of white voters. Id. at 1093-94. But the plaintiffs had the burden of showing disparate treatment. Instead of acknowledging that the current record's lack of facts showing a disparate impact is fatal to this claim, the majority invents a burden-shifting requirement. Id. at 1085-89. It argues that "once the plaintiffs had established the burden on minority voters" the district court erred by not "shifting the burden of rejoinder to the State." Id. at 1094. This burden-shifting requirement — which would require the state to prove a negative (no disparity if minorities are burdened) — has no support in the law.
Finally, the unusual procedural history leading up to this decision and the contrived time pressure we placed ourselves under in rendering this decision underscores exactly why courts refrain from intervening
After presumably fuller consideration than our own, a district court judge, a three-judge motions panel, and a two-judge majority of a separate merits panel all rejected Feldman's attempt to have enforcement of H.B. 2023 enjoined for the current election. Yet, with only three days of review (and no oral argument), a majority of our hastily constructed en banc panel has reversed course, requiring Arizona to change its voting procedures the weekend before Election Day. The record presented in this appeal exceeds 3000 pages; the parties' briefs (which now total five, after additional en banc briefing) present complex and well-reasoned arguments; and the alleged constitutional violations are serious. But our en banc panel has found it appropriate (indeed imperative) to resolve the matter in less time than we might usually take to decide a motion to reschedule oral argument.
Despite the majority's pretenses to having "given careful and thorough consideration" to the issues presented in this case, Order at 10, one wonders how much the obvious dangers inherent in our rushed and ad hoc process have infected the decision in this case. Cf. Purcell, 127 S.Ct. at 6 (Stevens, J., concurring) ("Given the importance of the constitutional issues, the Court wisely takes action that will enhance the likelihood that they will be resolved correctly on the basis of historical facts rather than speculation.").
The circumstances of this case do not inspire confidence in the majority's order. First, the majority does not appear even to have resolved what to label the relief it has determined must be handed down in this case.
Worse still is the precedent this hastily crafted decision will create. The majority purports to delay ruling on the merits of the challenge to H.B. 2023 — presumably so that this case can be carefully considered. Order at 11. But it "essentially" adopts the reasoning of a twenty-nine page dissent from the original three-judge panel opinion, Order at 6, which concludes that it is clear "this law violates the Constitution and the Voting Rights Act." Feldman, 840 F.3d at 1086 (Thomas, C.J., dissenting). If our court agrees with the essence of that dissent, what is left to decide after oral argument? The majority's framing of this issue as just a "stay," Order at 11, only obfuscates the fact that our en banc panel has blocked Arizona's voting law, declared it presumptively unconstitutional, and overturned the status quo the weekend before voting ends, all without first taking the time needed to gain a thorough mastery of the record, to hear oral argument from the parties, or to write a considered opinion.
I respectfully dissent.
BYBEE, Circuit Judge, with whom Circuit Judges O'SCANNLAIN, CLIFTON, CALLAHAN, and N.R. SMITH join, dissenting:
I join in full Judge O'Scannlain's dissent. I write separately to emphasize two brief points: First, Arizona's restrictions on who may collect an early ballot — a question very different from who may vote by early ballot — follows closely the recommendation of the bipartisan Commission on Federal Election Reform. Second, the Arizona early ballot law at issue here is a common provision, and similar restrictions on the collection of early or absentee ballots may be found on the books of some twenty-one states. Those provisions have been in effect for decades, and they have been enforced. Unless the Voting Rights Act means that identical provisions are permissible in some states and impermissible in other states, our decision would invalidate many of those provisions, including provisions in other states of the Ninth Circuit.
There is no constitutional or federal statutory right to vote by absentee ballot. See McDonald v. Bd. of Election Comm'rs of Chic., 394 U.S. 802, 807-08, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969) ("It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots.... [T]he absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny ... the exercise of the franchise ...."); see also Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 209, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (Scalia, J., concurring in the judgment) ("That the State accommodates some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence — not a constitutional imperative that falls short of what is required."); Grifffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004) (rejecting the claim that there is "a blanket right of registered voters to vote by absentee ballot;" "it is obvious that a federal court is not going to decree weekend voting, multi-day
Arizona's restrictions on the collection and handling of absentee ballots are neutral provisions designed to ensure the integrity of the voting process. Although the majority claims that there is no evidence of "voter fraud in Arizona caused by ballot collection," Maj. Op. at 369, (adopting Feldman v. Ariz. Sec'y of State, 840 F.3d 1057, 1089 (9th Cir. 2016) (Thomas, C.J., dissenting)), Arizona does not have to wait until it possesses such evidence before it acts. It may be pro-active, rather than reactionary. And the evidence for voter fraud in the handling of absentee ballots is well known. In 2005, the bi-partisan Commission on Federal Election Reform
The Commission on Federal Election Reform recommended that "States ... should reduce the risks of fraud and abuse in absentee voting by prohibiting `third-party' organizations, candidates, and political party activists from handling absentee ballots." Building Confidence, supra, at 46. It made a formal recommendation:
Id. at 47 (Recommendation 5.2.1). Arizona's restrictions hew closely to the Commission's recommendation. H.B. 2023 provides that "A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony." Ariz. Rev. Stat. Ann. § 16-1005(H) (codifying H.B. 2023). Consistent with the Commission's recommendation, the law does not apply to three classes of persons: (1) "[a]n election official," (2) "a United States postal service worker or any other person who is allowed by law to transmit United States mail," and (3) "[a] family member, household member or caregiver of the voter." Id. § 16-1005(H)-(I)(1). I don't see how Arizona can be said to have violated constitutional or statutory norms when it follows bipartisan recommendations for election reform in an area well understood to be fraught with the risk of voter fraud. Nothing could be
Moreover, the Arizona provision is substantially similar to the laws in effect in other states. In Indiana, for example, it is a felony for anyone to collect a voter's absentee ballot, with exceptions for members of the voter's household, the voter's designated attorney in fact, certain election officials, and mail carriers. Ind. Code § 3-14-2-16(4). Connecticut also restricts ballot collection, permitting only the voter, a designee of an ill or disabled voter, or the voter's immediate family members to mail or return an absentee ballot. Conn. Gen. Stat. § 9-140b(a). New Mexico likewise permits only the voter, a member of the voter's immediate family, or the voter's caregiver to mail or return an absentee ballot. N.M. Stat. Ann. § 1-6-10.1. At least seven other states (Georgia, Missouri, Nevada, North Carolina, Oklahoma, Ohio, and Texas) similarly restrict who can personally deliver an absentee ballot to a voting location. Ga. Code Ann. § 21-2-385(a) (limiting who may personally deliver an absentee ballot to designees of ill or disabled voters or family members); Mo. Rev. Stat. § 115.291(2) (restricting who can personally deliver an absentee ballot); Nev. Rev. Stat. § 293.330(4) (making it a felony for anyone other than the voter or the voter's family member to return an absentee ballot); N.C. Gen. Stat. § 163-231(b)(1) (allowing only family members or guardians to personally deliver an absentee ballot); Okla. Stat. Tit. 26, § 14-108(C) (voter delivering a ballot must provide proof of identity); Ohio Rev. Code Ann. § 3509.05(A) (limiting who may personally deliver an absent voter's ballot); Tex. Elec. Code Ann. § 86.006(a) (permitting only the voter to personally deliver the ballot).
Other states are somewhat less restrictive than Arizona because they permit a broader range of people to collect early ballots from voters but restrict how many ballots any one person can collect and return. Colorado forbids anyone from collecting more than ten ballots. Colo. Rev. Stat. § 1-7.5-107(4)(b); cf. Ga. Code Ann. § 21-2-385(b) (prohibiting any person from assisting more than ten physically disabled or illiterate electors in preparing their ballot). North Dakota prohibits anyone from collecting more than four ballots, N.D. Cent. Code § 16.1-07-08(1); New Jersey, N.J. Stat. Ann. § 19:63-4(a), and Minnesota, Minn. Stat. Ann. § 203B.08 sbd. 1, three; Arkansas, Ark. Code Ann. § 7-5-403, Nebraska, Neb. Rev. Stat. § 32-943(2), and West Virginia, W. Va. Code § 3-3-5(k), two. South Dakota prohibits anyone from collecting more than one ballot without notifying "the person in charge of the election of all voters for whom he is a messenger." S.D. Codified Laws § 12-19-2.2.
Some of the laws are stated as a restriction on how the early voter may return a ballot. In those states, the voter risks having his vote disqualified. See, e.g., Wrinn v. Dunleavy, 186 Conn. 125, 440 A.2d 261, 272 (1982) (disqualifying ballots and ordering a new primary election when an unauthorized individual mailed absentee ballots). In other states, as in Arizona, the statute penalizes the person collecting the ballot. See Ind. Code § 3-14-2-16 (making it a felony knowingly to receive a ballot from a voter); Nev. Rev. Stat. § 293.330(4) (making it a felony for unauthorized persons to return an absentee ballot); Tex. Elec. Code Ann. § 86.006 (making it a misdemeanor for an unauthorized person to possess between one and twenty ballots and a felony to possess more than twenty); see also Murphy v. State, 837 N.E.2d 591, 594-96 (Ind. Ct. App. 2005) (affirming a denial of a motion to dismiss a charge for unauthorized receipt of a ballot from an absentee voter); People v. Deganutti, 348 Ill.App.3d 512, 284 Ill.Dec. 538, 810 N.E.2d 191, 198 (2004) (affirming conviction for absentee ballot violation); see also Ga. Code Ann. § 21-2-385(b) (providing for penalties up to ten years and a fine of $100,000 for anyone assisting more than ten physically disabled or illiterate electors). In those states, the ballot, even if collected improperly, may be valid. See In re Election of Member of Rock Hill Bd. of Educ., 76 Ohio St.3d 601, 669 N.E.2d 1116, 1122-23 (1996) (holding that a ballot will not be disqualified for technical error).
"[T]he right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system." Burdick v. Takushi, 504 U.S. 428, 441, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). H.B. 2023 is well within the range of regulations that other states have enacted. I see no infirmity, constitutional or statutory, in Arizona's efforts to prevent the potential for fraud in the collection of early ballots. I respectfully dissent.
N.R. SMITH, Circuit Judge, dissenting:
I join Parts I, II, and III of Judge O'Scannlain's dissent, along with Judge Bybee's separate dissent. However, I write separately to emphasize that the majority erred in granting the stay pending appeal, because Appellants cannot meet the standard set forth by Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983).
The standard for granting a stay pending appeal is well established: (1) "the moving party is required to show both a probability of success on the merits and the possibility of irreparable injury"; (2) "the moving party must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in its favor"; and (3) we should "strongly consider[]" the "public interest." Id.; see also
In applying these standards here, I wholeheartedly agree with Judge Ikuta's three judge panel majority opinion in Feldman v. Arizona, 840 F.3d 1057 (9th Cir. 2016). Appellants raise several challenges to H.B. 2023, including violations of the Voting Rights Act of 1965, § 2; the Fourteenth Amendment; and the First Amendment.
Judge Ikuta thoroughly analyzed Appellants' likelihood of success on the merits of each theory appealed to us. See Feldman, 840 F.3d at 1068-85. When evaluating whether the district court based its decision by applying an erroneous legal standard, Judge Ikuta first properly applied the two-part legal framework, adopted by our sister circuits, in resolving the Voting Rights Act issue. Id. at 1068-80. She explained why the district court properly applied that legal authority. Id. at 1080-83. I agree that, because the district court found that Appellants' § 2 claim failed at the first prong, it had no obligation to reach the second prong. Id. at 1076-77. Judge Ikuta next laid out the legal framework for facial challenges to voting laws under the Fourteenth and First Amendments and considered Feldman's challenges. Id. at 1077-85. She properly applied the Anderson/Burdick balancing test. Id. at 1079-85. As to the Fourteenth Amendment claim, she explained why "the district court did not clearly err in finding that H.B. 2023 did not `significantly increase the usual burdens of voting.'" Id. at 1079. She correctly applied Crawford in that analysis. Id. at 1079-84. Lastly, Judge Ikuta addressed the legal authority applicable to the First Amendment claim and correctly determined that "the district court's conclusion that Arizona's regulatory interests in preventing voter fraud justifies the minimal burden that H.B. 2023 imposes on associational rights under the Anderson/Burdick test." Id. at 1084.
Appellants also failed to establish that the district court's decision as to the facts was "(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record." Id. at 1076 (quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en bane)). Judge Ikuta's discussion of the district court's factual findings evidences no abuse of discretion. See id. at 1068-85.
Having concluded that the district court did not err in holding that Appellants failed to demonstrate a likelihood of success on the merits, Judge Ikuta then considered the remaining factors for issuing a preliminary injunction. Id. at 1084-87. I agree with her that Appellants have not established that irreparable harm will flow from a failure to enjoin Arizona, because it is not likely they will suffer a violation of their statutory or constitutional rights. See id. at 1084-85. Appellants have failed to show that the balance of hardships tips
This error is further compounded by issuing this stay on the eve of an election. As Judge O'Scannlain excellently points out in his dissent, when our court is presented a request to interfere in a state's election laws, "just weeks before an election" we are "required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases." Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam). These considerations provide an additional reason why we should restrain ourselves in granting a stay in election law cases such as this one. I agree with Judge O'Scannlain's arguments and many cases cited in his dissent emphasizing this constraint. However, Purcell itself gives specific guidance to us in this case, because the Supreme Court was specifically addressing a Ninth Circuit decision to grant an injunction when dealing with voter identification rules. There, the Supreme Court explained:
Id. at 5-6 (emphasis added).
In other words, even if the Ninth Circuit were right in the ultimate decision to enjoin the application of the voter identification rules in Purcell, "[g]iven the imminence of the election and the inadequate time to resolve the factual disputes," the Supreme Court, out "of necessity," allowed the election to proceed without a stay of the application of the voter identification rules. Id.
I especially note the advice in the concurrence of Justice Stevens:
Id. at 6 (Stevens, J., concurring). Even if I were to agree with the majority, that a preliminary injunction should issue, I would heed Justice Stevens's advice and allow Arizona's law to be evaluated on
478 U.S. at 36-37, 106 S.Ct. 2752 (internal quotation marks omitted). The Supreme Court has stated that another relevant factor is "[a] State's justification for its electoral system." Houston Lawyers' Ass'n v. Attorney Gen. of Tex., 501 U.S. 419, 426-27, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991).
To accept the majority's argument that the importance of this case compels action leaves one wondering what change in election law would not qualify as important. Cf. Clingman v. Beaver, 544 U.S. 581, 593 [125 S.Ct. 2029, 161 L.Ed.2d 920] (2005) ("To deem ordinary and widespread burdens [on voting] like these severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes."). This "importance" exception would whittle Purcell down to nothing. As Justice Stevens explained in Purcell, it is precisely because these issues are important that we should not rush to decide them. See, 549 U.S. at 6 [127 S.Ct. 5] (Stevens, J., concurring).
