840 F.3d 1057 (9th Cir. 2016), 16-16698, Feldman v. Arizona Secretary of State's Office

Docket Nº:16-16698
Citation:840 F.3d 1057
Opinion Judge:Sandra S. Ikuta, Circuit Judge
Party Name:LESLIE FELDMAN; LUZ MAGALLANES; MERCEDEZ HYMES; JULIO MORERA; CLEO OVALLE; PETERSON ZAH, Former Plaintiffs-Appellants, 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, BERNIE 20...
Attorney: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 S...
Judge Panel: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. 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...
Case Date:October 28, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Leslie Feldman and others filed suit challenging Arizona House Bill 2023 (H.B. 2023), which precludes individuals who do not fall into one of several exceptions (e.g., election officials, mail carriers, family members, household members, and specified caregivers) from collecting early ballots from another person. Plaintiff argues that this state statute violates section 2 of the Voting Rights Act of 1965, 52 U.S.C. 10301, the Fourteenth Amendment, and the First Amendment because, among other things, it disproportionately and adversely impacts... (see full summary)

 
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Page 1057

840 F.3d 1057 (9th Cir. 2016)

LESLIE FELDMAN; LUZ MAGALLANES; MERCEDEZ HYMES; JULIO MORERA; CLEO OVALLE; PETERSON ZAH, Former Plaintiffs-Appellants, 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, 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

United States Court of Appeals, Ninth Circuit

October 28, 2016

Argued and Submitted October 19, 2016, San Francisco, California

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Appeal from the United States District Court for the District of Arizona. D.C. No. 2:16-cv-01065-DLR. Douglas L. Rayes, District Judge, Presiding.

AFFIRMED.

SUMMARY[*]

Civil Rights

The panel affirmed the district court's order denying plaintiffs' motion for a preliminary injunction seeking to prohibit the enforcement of Arizona House Bill 2023, which precludes individuals who do not fall into one of several exceptions (e.g., election officials, mail carriers, family members, household members, and specified caregivers) from collecting early ballots from another person.

Plaintiffs alleged that Arizona House Bill 2023 violates § 2 of the Voting Rights Act of 1965, the Fourteenth Amendment and the First Amendment because among other things, it disproportionately and adversely impacts minorities, unjustifiably burdens the right to vote, and interferes with the freedom of association.

Addressing the Voting Rights Act claim, the panel held that the district court did not clearly err in concluding that plaintiffs adduced no evidence showing that House Bill 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. The panel held that because plaintiffs' failed to present such evidence, the district court did not err in declining to consider whether House Bill 2023 interacted with racial discrimination to cause a discriminatory result.

The panel held that the district court did not clearly err in (1) finding that House Bill 2023 imposed a minimal burden on voters' Fourteenth Amendment right to vote; (2) finding that Arizona asserted sufficiently weighty interests justifying the limitation; and (3) ultimately concluding that plaintiffs failed to establish that they were likely to succeed on the merits of their Fourteenth Amendment challenge.

The panel held that plaintiffs were unlikely to succeed on the merits of their First Amendment claim. The panel concluded 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 House Bill 2023 imposes on freedom of association.

Finally, the panel held that the impact of House Bill 2023 on prospective voters, which the district court found largely to be inconvenience, did not outweigh the hardship on Arizona, which has a compelling interest in the enforcement of its duly enacted laws.

Dissenting, Chief Judge Thomas stated that Arizona has criminalized one of the most popular and effective methods by which minority voters cast their ballots, and that the law violates the Constitution and the Voting Rights Act.

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, Phoenix, Arizona, for Intervenor-Plaintiff-Appellant.

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.

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. 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. Bybee, Circuit Judge, with whom Circuit Judges O'Scannlain, Clifton, Callahan, and N.R. Smith join, dissenting.

OPINION

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Sandra S. Ikuta, Circuit Judge

In April 2016, Leslie Feldman and other appellants[1] brought an action in district court challenging Arizona House Bill 2023

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(H.B. 2023), which precludes individuals who do not fall into one of several exceptions (e.g., election officials, mail carriers, family members, household members, and specified caregivers) from collecting early ballots from another person. See 2016 Ariz. Legis. Serv. Ch. 5, § 1 (H.B. 2023) (West) (codified at Ariz. Rev. Stat. § 16-1005(H)-(I)). According to Feldman, this state statute violates § 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301, the Fourteenth Amendment, and the First Amendment2 because, among other things, it disproportionately and adversely impacts minorities, unjustifiably burdens the right to vote, and interferes with the freedom of association. After the district court denied Feldman's motion for a preliminary injunction, Feldman filed this emergency interlocutory appeal. Because the district court did not abuse its discretion in denying the motion, we affirm.

I

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.

A

Arizona law permits " [a]ny qualified elector" to " vote by early ballot." Ariz. Rev. Stat. § 16-541(A).3 Early voting can occur by mail or in person at an on-site early voting location in the 27 days before an election. See id. § 16-542. All Arizona counties operate at least one on-site early voting location. Voters may also return their ballots in person at any polling place without waiting in line, and several counties additionally provide special drop boxes for early ballot submission. Moreover, voters can vote early by mail, either for an individual election or by having their names added to a permanent early voting list. An early ballot is mailed to every person on that list as a matter of course no later than the first day of the early voting period. Id. § 16-544(F). Voters may return their early ballot by mail at no cost, but it must be received by 7:00 p.m. on election day. Id. § § 16-542(C); 16-548(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).

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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...

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