904 F.3d 686 (9th Cir. 2018), 18-15845, Democratic National Committee v. Reagan

Docket Nº:18-15845
Citation:904 F.3d 686
Opinion Judge:IKUTA, Circuit Judge:
Party Name:The DEMOCRATIC NATIONAL COMMITTEE; DSCC, AKA Democratic Senatorial Campaign Committee; The Arizona Democratic Party, Plaintiffs-Appellants, v. Michele REAGAN, in her official capacity as Secretary of State of Arizona; Mark Brnovich, Attorney General, in his official capacity as Arizona Attorney General, Defendants-Appellees, The Arizona ...
Attorney:Bruce V. Spiva (argued), Alexander G. Tischenko, Amanda R. Callais, Elisabeth C. Frost, and Marc E. Elias, Perkins Coie LLP, Washington, D.C.; Sarah R. Gonski and Daniel C. Barr, Perkins Coie LLP, Phoenix, Arizona; Joshua L. Kaul, Perkins Coie LLP, Madison, Wisconsin; for Plaintiffs-Appellants. D...
Judge Panel:Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and Sandra S. Ikuta, Circuit Judges. Dissent by Chief Judge Thomas THOMAS, Chief Judge, dissenting:
Case Date:September 12, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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904 F.3d 686 (9th Cir. 2018)

The DEMOCRATIC NATIONAL COMMITTEE; DSCC, AKA Democratic Senatorial Campaign Committee; The Arizona Democratic Party, Plaintiffs-Appellants,

v.

Michele REAGAN, in her official capacity as Secretary of State of Arizona; Mark Brnovich, Attorney General, in his official capacity as Arizona Attorney General, Defendants-Appellees, The Arizona Republican Party; Bill Gates, Councilman; Suzanne Klapp, Councilwoman; Debbie Lesko, Sen.; Tony Rivero, Rep., Intervenor-Defendants-Appellees.

No. 18-15845

United States Court of Appeals, Ninth Circuit

September 12, 2018

Argued and Submitted July 20, 2018 San Francisco, California

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Bruce V. Spiva (argued), Alexander G. Tischenko, Amanda R. Callais, Elisabeth C. Frost, and Marc E. Elias, Perkins Coie LLP, Washington, D.C.; Sarah R. Gonski and Daniel C. Barr, Perkins Coie LLP, Phoenix, Arizona; Joshua L. Kaul, Perkins Coie LLP, Madison, Wisconsin; for Plaintiffs-Appellants.

Dominic E. Draye (argued), Joseph E. La Rue, Karen J. Hartman-Tellez, Kara M. Karlson, and Andrew G. Pappas, Office of the Attorney General, Phoenix, Arizona, for Defendants-Appellees.

Brett W. Johnson (argued) and Colin P. Ahler, Snell & Wilmer LLP, Phoenix, Arizona, for Intervenor-Defendants-Appellees.

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

Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.

Dissent by Chief Judge Thomas

SUMMARY[*]

Civil Rights

The panel affirmed the district court's judgment, entered following a bench trial, in an action challenging under the First, Fourteenth and Fifteenth Amendments, and § 2 of the Voting Rights Act, two state of Arizona election practices: (1) Arizona's requirement that in-person voters cast their ballots in their assigned precinct, which Arizona enforces by not counting ballots cast in the wrong precinct; and (2) House Bill 2023, which makes it a felony for third parties to collect early ballots from voters, unless the collector falls into one of several exceptions.

The panel held that the district court did not err in holding that H.B. 2023 and the out of precinct policy did not violate the First and Fourteenth Amendments because the provisions imposed only a minimal burden on voters and were adequately designed to serve Arizona's important regulatory interests. The panel also concluded that the district court did not err in holding that H.B. 2023 and the out of precinct policy did not violate § 2 of the Voting Rights Act. The panel held that given the minimal burden imposed by these election practices, plaintiffs failed to show that minority voters were deprived of an equal opportunity to participate in the political process and elect candidates of their choice. Finally, the panel concluded that that the district court did not err in holding that H.B. 2023 did not violate the Fifteenth Amendment because plaintiffs failed to carry their burden of showing that H.B. 2023 was enacted with discriminatory intent.

Dissenting, Chief Judge Thomas stated that Arizona's policy of wholly discarding-rather than partially counting-votes cast out-of-precinct had a disproportionate effect on racial and ethnic minority groups. He stated that the policy violated § 2 of the Voting Rights Act, and it unconstitutionally burdened the right to vote guaranteed by the First Amendment and incorporated against the states under the Fourteenth Amendment. He further wrote that H.B. 2023, which criminalizes most ballot collection, served no purpose aside from making voting more difficult, and keeping more African American, Hispanic, and Native American voters from the polls than white voters.

OPINION

IKUTA, Circuit Judge:

The Democratic National Committee (DNC) and other appellants1 sued the state of Arizona,2 raising several challenges under the First, Fourteenth and Fifteenth Amendments, and § 2 of the Voting Rights Act of 1965 (VRA), 52 U.S.C. § 10301, against two state election practices: (1) Arizona’s longstanding requirement that in-person voters cast their ballots in their assigned precinct, which Arizona enforces by not counting ballots cast in the wrong precinct (referred to by DNC as the out-of-precinct or OOP policy), and (2) H.B. 2023, a recent legislative enactment which precludes most third parties from collecting early ballots from voters. After a lengthy trial involving the testimony of 51 witnesses and over 230 evidentiary exhibits, the district court rejected each of DNC’s claims. Democratic Nat’l Comm. v. Reagan, __ F.Supp.3d __, No. CV-16-01065-PHX-DLR, 2018 WL 2191664 (D. Ariz. May 10, 2018).

In deciding this case, the district court was tasked with making primarily factual determinations. For instance, a First and Fourteenth Amendment challenge to an election rule involves the "intense[ly] factual inquiry" of whether a plaintiff has carried the burden of showing that challenged election laws impose a severe burden on Arizona voters, or a subgroup thereof. Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th Cir. 2007). A Fifteenth Amendment claim involves the "pure question of fact" of whether the plaintiff has carried the burden of showing

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that the state legislature enacted the challenged law with a discriminatory intent. Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). And in a VRA challenge, we defer to "the district court’s superior fact-finding capabilities," Smith v. Salt River Project Agric. Improvements & Power Dist., 109 F.3d 586, 591 (9th Cir. 1997), regarding whether the plaintiff has carried the burden of showing that an election practice offers minorities less opportunity "to participate in the political process and to elect representatives of their choice." 52 U.S.C. § 10301(b); see also Chisom v. Roemer, 501 U.S. 380, 397, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). We must affirm these factual findings unless they are "clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

In its detailed 83-page opinion, the district court found that DNC failed to meet its burden on these critical factual questions. Its analysis on these factual inquiries was thorough and evenhanded, with findings well-supported by the record. Given the district court’s extensive factual findings, much of DNC’s appeal amounts to a request that we reweigh and reevaluate the evidence in the record. But we may not "duplicate the role of the lower court" or reject factual findings that, as here, are not clearly erroneous. Id. at 573, 105 S.Ct. 1504. Nor did the district court err in identifying and applying the correct legal standard to each of DNC’s claims.

Accordingly, we conclude that the district court did not err in holding that H.B. 2023 and the OOP policy did not violate the First and Fourteenth Amendments because they imposed only a minimal burden on voters and were adequately designed to serve Arizona’s important regulatory interests. We also conclude that the district court did not err in holding that H.B. 2023 and the OOP policy did not violate § 2 of the VRA. Given the minimal burden imposed by these election practices, DNC failed to show that minority voters were deprived of an equal opportunity to participate in the political process and elect candidates of their choice. Finally, we conclude that the district court did not err in holding that H.B. 2023 did not violate the Fifteenth Amendment, because DNC failed to carry its burden of showing that H.B. 2023 was enacted with discriminatory intent. We reject DNC’s urging to toss out the district court’s findings, reweigh the facts and reach opposite conclusions. As such, we affirm the district court.

I

The district court’s order denying DNC’s claims sets forth the facts in detail, Reagan, __ F.Supp.3d at __ - __, 2018 WL 2191664, at *1-9, so we provide only a brief factual and procedural summary here. The district court’s factual findings are discussed in detail as they become relevant to our analysis.

A

We begin by reviewing Arizona’s election system. Arizona permits voters to vote either in person on Election Day or by early mail ballot. Id. at __, __, 2018 WL 2191664, at *7, *12. The vast majority of Arizonans vote by early ballot. For instance, only about 20 percent of the votes in the 2016 general election were cast in person. Id. at __, 2018 WL 2191664, at *12.

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