893 F.3d 671 (9th Cir. 2018), 18-15775, Short v. Brown
|Citation:||893 F.3d 671|
|Opinion Judge:||OWENS, Circuit Judge:|
|Party Name:||Jeffrey SHORT; Trina T.R. Heter; Sacramento Valley Lincoln Club, Plaintiffs-Appellants, v. Edmund G. BROWN, Jr.; Alex Padilla, in his official capacity as Secretary of State of California; Jill Lavine, in her official capacity as Registrar of Voters for the County of Sacramento; Rebecca Martinez, in her official capacity as Registrar of Voters...|
|Attorney:||Jason Brett Torchinsky (argued), Holtzman Vogel Josefiak Torchinsky PLLC, Warrenton, Virginia; Brian Hildreth, Bell McAndrews and Hiltachk, Sacramento, California; for Plaintiffs-Appellants. Benjamin Matthew Glickman (argued), Deputy Attorney General; Mark R. Beckington, Supervising Deputy Attorn...|
|Judge Panel:||Before: Kermit V. Lipez, Richard C. Tallman, and John B. Owens, Circuit Judges.|
|Case Date:||June 22, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted June 8, 2018 Pasadena, California
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Eastern District of California, Troy L. Nunley, District Judge, Presiding, D.C. No. 2:18-cv-00421-TLN-KJN
Jason Brett Torchinsky (argued), Holtzman Vogel Josefiak Torchinsky PLLC, Warrenton, Virginia; Brian Hildreth, Bell McAndrews and Hiltachk, Sacramento, California; for Plaintiffs-Appellants.
Benjamin Matthew Glickman (argued), Deputy Attorney General; Mark R. Beckington, Supervising Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellees.
Before: Kermit V. Lipez,[*] Richard C. Tallman, and John B. Owens, Circuit Judges.
Voting Law / Preliminary Injunction
The panel affirmed the district court's denial of plaintiffs' request for an order preliminarily enjoining the California Voter's Choice Act ("VCA").
California decided to adopt an all-mailed ballot election system, and enacted the VCA. The VCA's county-by-county structure permits voters in some counties to receive a ballot by mail automatically, while requiring voters in other counties to register to receive a ballot by mail. Plaintiffs alleged that the VCA violated the Fourteenth Amendment's Equal Protection Clause by restricting the fundamental right to vote on the basis of county of residence without sufficient justification; and sought a preliminary injunction against enforcement of the VCA.
The panel held that the district court properly denied the request for a preliminary injunction. The panel held that the case did not raise "serious questions" under the Supreme Court's Anderson/Burdick test for constitutional challenges to state election laws, which provided that strict scrutiny applied only where the burden on the fundamental right to vote was severe. See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). The panel held that the VCA did not burden anyone's right to vote, but instead made it easier for some voters to cast their ballots by mail. The panel further held that to the extent that having to register to receive a mailed ballot could be viewed as a burden, it was an extremely small one that did not demand serious constitutional scrutiny. The panel also held that given the slight burden for voters outside the all-mailed ballot election system counties, California's general interest in increasing voter turnout and specific interest in incremental election-system experimentation adequately justified the VCA's geographic distinction.
The panel held that even if the merits question were close, the district court did not abuse its discretion in weighing all four of the preliminary injunction factors in Winters v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
OWENS, Circuit Judge:
Jeffrey Short, Trina T.R. Heter, and the Sacramento Valley Lincoln Club ("appellants") appeal from the district courts denial of their request for an order preliminarily enjoining the California Voters Choice Act, S.B. 450, 2015-2016 Reg. Sess. (Cal. 2016) ("VCA"). We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.1
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Voter Turnout and the VCA
In 2014, California voters made a poor showing at the polls. Turnout was historically low: only 25% of registered voters participated in the June 2014 primary, and only 42% in the November 2014 general election.2 To increase voluntary participation in the democratic process— a right that people around the world are willing to die for— California enacted the VCA.
To solve the problem of California voters "mailing in" recent elections, California decided to adopt an all-mailed ballot election system. Under this system, which is modeled after Colorados successful election system, a ballot is automatically mailed to every registered voter twenty-nine days before the election date. Cal. Elec. Code § 4005(a)(8)(A). A voter may cast a completed ballot in one of three ways: by (1) mailing it in; (2) depositing the ballot at a designated "ballot dropoff location" (a large locked mailbox); or (3) turning in the ballot at a "vote center" (a voting-resource hub that replaces traditional polling places). Id. at § 4005(a)(1)-(2). The voter may cast his ballot by mail or at a dropoff location as soon as he receives it.
Rather than require all fifty-eight of Californias counties to implement this new voting system immediately, the VCA authorizes fourteen counties to opt in to the all-mailed procedure on or after January 1, 2018.4 Id. at § 4005(a). All other counties may opt in to the all-mailed system on or after January 1, 2020.5 Id. Within six
months of each election conducted under the all-mailed system, the California Secretary of State must submit to the legislature a detailed report assessing turnout and other metrics of success. Id. at § 4005(g). The parties agree that in any given county, election participation will be higher under the all-mailed ballot election system than it would be under the traditional polling-place system.
Even before the VCAs enactment, California voters could opt to vote by mail on an individual basis.6 Id. at § 3003. Under the VCA, this option remains available to individual voters whose home county has not opted in to the all-mailed ballot election system.7
B. This Lawsuit
At the end of February 2018, the appellants filed this lawsuit, alleging that the VCA violated the Fourteenth Amendments Equal Protection Clause by restricting the fundamental right to vote on the basis of county of residence, without sufficient justification. The appellants also sought a preliminary injunction against enforcement of the VCA.
The district court rejected the request for a preliminary injunction. While the district court thought that the appellants had "raised serious questions on the merits," it concluded that they had not met their burden of showing that a preliminary injunction would be in the public interest. This timely appeal followed, and we granted the appellants unopposed motion to expedite it.
A. Standard of Review
Plaintiffs seeking a preliminary injunction must establish that: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The Ninth Circuit weighs these factors on a sliding scale, such that where there are only "serious questions going to the merits"— that is, less than a "likelihood of success" on the merits— a preliminary injunction may still issue so long as "the balance of hardships tips sharply in the plaintiffs favor" and the other two factors are satisfied. Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) ).
When the preliminary relief sought would interfere with state voting procedures shortly before an election, a court considering such relief must weigh, "in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases
and its own institutional procedures." Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam). Of course, where a state election law raises constitutional concerns, federal courts can and must review it. Baker v. Carr, 369 U.S. 186, 199-200, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). But the Supreme Court has warned us many times to tread carefully where preliminary relief would disrupt a state voting system on the eve of an election. See, e.g., Purcell, 549 U.S. at 4-6, 127 S.Ct. 5; Williams v. Rhodes, 393 U.S. 23, 35, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).
We review for abuse of discretion a district courts decision to deny a preliminary injunction, but we review de novo the conclusions of law underlying that decision. Shell Offshore, 709 F.3d at 1286. We review findings of fact for clear error. Id.
B. The District Court Properly Denied the Request for a Preliminary Injunction
The district court in this case believed that the appellants had raised "serious questions on the merits," but it denied the preliminary injunction based on the fourth Winter factor. The district courts balancing of the Winter factors was not an abuse of discretion. However, more fundamentally, we do not think that this case raises "serious questions" under the Supreme Courts Anderson / Burdick test for constitutional challenges to state election laws, and so we agree that preliminary relief is not warranted here.
1. The Anderson/Burdick Framework
No one disputes that the right to vote is fundamental. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667, 86 S.Ct. 107...
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