Ariz. Democratic Party v. Hobbs

• Decision Date: 08 December 2021
• Docket Number: No. 20-16766,No. 20-16759,20-16759
• Citation: 18 F.4th 1179 (Mem)
• Parties: ARIZONA DEMOCRATIC PARTY; Democratic National Committee; DSCC, Plaintiffs-Appellees, v. Katie HOBBS, in her official capacity as Arizona Secretary of State, Defendant-Appellee, State of Arizona, Intervenor-Defendant-Appellant, and Edison Wauneka, in his official capacity as Apache County Recorder ; David Stevens, in his official capacity as Cochise County Recorder ; Patty Hansen, in her official capacity as Coconino County Recorder ; Sadie Jo Bingham, in her official capacity as Gila County Recorder; Wendy John, in her official capacity as Graham County Recorder; Sharie Milheiro, in her official capacity as Greenlee County Recorder ; Richard Garcia, in his official capacity as La Paz County Recorder ; Adrian Fontes, in his official capacity as Maricopa County Recorder ; Kristi Blair, in her official capacity as Mohave County Recorder; Michael Sample, in his official capacity as Navajo County Recorder; F. Ann Rodriguez, in her official capacity as Pima County Recorder; Virginia Ross, in her official capacity as Pinal County Recorder ; Suzanne Sainz, in her official capacity as Santa Cruz County Recorder; Leslie Hoffman, in her official capacity as Yavapai County Recorder ; Robyn Pouquette, in her official capacity as Yuma County Recorder, Defendants, Republican National Committee; Arizona Republican Party, Intervenor-Defendants. Arizona Democratic Party; Democratic National Committee; DSCC, Plaintiffs-Appellees, v. Katie Hobbs, in her official capacity as Arizona Secretary of State, Defendant-Appellee, Republican National Committee; Arizona Republican Party, Intervenor-Defendants-Appellants, and Edison Wauneka, in his official capacity as Apache County Recorder ; David Stevens, in his official capacity as Cochise County Recorder ; Patty Hansen, in her official capacity as Coconino County Recorder ; Sadie Jo Bingham, in her official capacity as Gila County Recorder; Wendy John, in her official capacity as Graham County Recorder; Sharie Milheiro, in her official capacity as Greenlee County Recorder ; Richard Garcia, in his official capacity as La Paz County Recorder ; Adrian Fontes, in his official capacity as Maricopa County Recorder ; Kristi Blair, in her official capacity as Mohave County Recorder; Michael Sample, in his official capacity as Navajo County Recorder; F. Ann Rodriguez, in her official capacity as Pima County Recorder; Virginia Ross, in her official capacity as Pinal County Recorder ; Suzanne Sainz, in her official capacity as Santa Cruz County Recorder; Leslie Hoffman, in her official capacity as Yavapai County Recorder ; Robyn Pouquette, in her official capacity as Yuma County Recorder, Defendants, State of Arizona, Intervenor-Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.4th 1179 (Mem)

ARIZONA DEMOCRATIC PARTY; Democratic National Committee; DSCC, Plaintiffs-Appellees,

v.Katie HOBBS, in her official capacity as Arizona Secretary of State, Defendant-Appellee,State of Arizona, Intervenor-Defendant-Appellant,andEdison Wauneka, in his official capacity as Apache County Recorder ; David Stevens, in his official capacity as Cochise County Recorder ; Patty Hansen, in her official capacity as Coconino County Recorder ; Sadie Jo Bingham, in her official capacity as Gila County Recorder; Wendy John, in her official capacity as Graham County Recorder; Sharie Milheiro, in her official capacity as Greenlee County Recorder ; Richard Garcia, in his official capacity as La Paz County Recorder ; Adrian Fontes, in his official capacity as Maricopa County Recorder ; Kristi Blair, in her official capacity as Mohave County Recorder; Michael Sample, in his official capacity as Navajo County Recorder; F. Ann Rodriguez, in her official capacity as Pima County Recorder; Virginia Ross, in her official capacity as Pinal County Recorder ; Suzanne Sainz, in her official capacity as Santa Cruz County Recorder; Leslie Hoffman, in her official capacity as Yavapai County Recorder ; Robyn Pouquette, in her official capacity as Yuma County Recorder, Defendants,

Republican National Committee; Arizona Republican Party, Intervenor-Defendants.

Arizona Democratic Party; Democratic National Committee; DSCC, Plaintiffs-Appellees,

v.Katie Hobbs, in her official capacity as Arizona Secretary of State, Defendant-Appellee,Republican National Committee; Arizona Republican Party, Intervenor-Defendants-Appellants,andEdison Wauneka, in his official capacity as Apache County Recorder ; David Stevens, in his official capacity as Cochise County Recorder ; Patty Hansen, in her official capacity as Coconino County Recorder ; Sadie Jo Bingham, in her official capacity as Gila County Recorder; Wendy John, in her official capacity as Graham County Recorder; Sharie Milheiro, in her official capacity as Greenlee County Recorder ; Richard Garcia, in his official capacity as La Paz County Recorder ; Adrian Fontes, in his official capacity as Maricopa County Recorder ; Kristi Blair, in her official capacity as Mohave County Recorder; Michael Sample, in his official capacity as Navajo County Recorder; F. Ann Rodriguez, in her official capacity as Pima County Recorder; Virginia Ross, in her official capacity as Pinal County Recorder ; Suzanne Sainz, in her official capacity as Santa Cruz County Recorder; Leslie Hoffman, in her official capacity as Yavapai County Recorder ; Robyn Pouquette, in her official capacity as Yuma County Recorder, Defendants,

State of Arizona, Intervenor-Defendant.

No. 20-16759

No. 20-16766

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2021 San Francisco, California

Filed December 8, 2021

Drew C. Ensign (argued) and Michael S. Catlett, Deputy Solicitors General; Jennifer J. Wright and Robert J. Makar, Assistant Attorneys General; Brunn W. Roysden III, Solicitor General; Joseph A. Kanefield, Chief Deputy & Chief of Staff; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Intervenor-Defendant-Appellant State of Arizona.

Daniel Shapiro (argued), Thomas McCarthy, and Cameron T. Norris, Consovoy McCarthy PLLC, Arlington, Virginia; Patrick N. Strawbridge, Consovoy McCarthy PLLC, Boston, Massachusetts; Kory A. Langhofer and Thomas J. Basile, Statecraft PLLC, Phoenix, Arizona; for Intervenor-Defendants-Appellants Republican National Committee and Arizona Republican Party.

Elisabeth C. Frost (argued), Marc E. Elias and Jyoti Jasrasaria, Perkins Coie LLP, Washington, D.C.; Kevin Hamilton and William B. Stafford, Perkins Coie LLP, Seattle, Washington; for Plaintiffs-Appellees.

Andrew G. Pappas, General Counsel, Arizona House of Representatives, Phoenix, Arizona; Gregrey G. Jernigan, General Counsel, Arizona State Senate, Phoenix, Arizona; for Amici Curiae Russell Bowers Speaker of the Arizona House of Representatives, and Karen Fann President of the Arizona State Senate.

Edmund G. LaCour Jr., Solicitor General; Steve Marshall, Attorney General; A. Barrett Bowdre, Deputy Solicitor General; Office of the Attorney General, Montgomery, Alabama; Leslie Rutledge, Attorney General, Little Rock, Arkansas; Christopher M. Carr, Attorney General, Atlanta, Georgia; Lawrence G. Wasden, Attorney General, Boise, Idaho; Curtis T. Hill Jr., Attorney General, Indianapolis, Indiana; Derek Schmidt, Attorney General, Topeka, Kansas; Daniel Cameron, Attorney General, Frankfort, Kentucky; Jeff Landry, Attorney General, Baton Rouse, Louisiana; Lynn Fitch, Attorney General, Jackson, Mississippi; Eric S. Schmitt, Attorney General, Jefferson City, Missouri; Tim Fox, Attorney General, Helena, Montana; Douglas J. Peterson, Attorney General, Lincoln, Nebraska; Dave Yost, Attorney General, Columbus, Ohio; Mike Hunter, Attorney General, Oklahoma City, Oklahoma; Alan Wilson, Attorney General, Columbia, South Carolina; Jason Ravnsborg, Attorney General, Pierre, South Dakota; Herbert Slatery III, Attorney General, Nashville, Tennessee; Ken Paxton, Attorney General, Austin, Texas; Sean D. Reyes, Attorney General, Salt Lake City, Utah; Patrick Morrisey, Attorney General, Charleston, West Virginia; for Amici Curiae States of Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.

Jason Torchinsky, Dallin B. Holt, and Kenneth C. Daines, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Haymarket, Virginia, for Amicus Curiae Honest Elections Project.

Before: A. Wallace Tashima and Susan P. Graber, Circuit Judges, and Kathryn H. Vratil,^** District Judge.

OPINION

GRABER, Circuit Judge Most of Arizona's voters choose to vote by mail, which requires the voter to complete a ballot and sign an affidavit attesting that the voter personally has cast the ballot. Inevitably, a small number of voters neglect to sign the affidavit. Election officials scrupulously examine each affidavit to ensure that it is signed and, if the signature is missing, they notify the voter that the unsigned ballot is invalid and that the voter may cast a replacement or provisional ballot. Arizona long has allowed voters to correct a missing signature by casting a replacement or provisional ballot, provided that the voter does so by the election-day deadline.

Plaintiffs Arizona Democratic Party, Democratic National Committee, and Democratic Senatorial Campaign Committee brought this action, challenging the election-day deadline for voters who neglect to sign the affidavit as a violation of the First and Fourteenth Amendments and as a denial of procedural due process. The district court agreed with Plaintiffs and permanently enjoined Defendants Secretary of State Katie Hobbs and the County Recorders for all of Arizona's counties, requiring Defendants to extend the deadline by three or five days, depending on the type of election. We disagree. We first hold that, under the framework articulated by Anderson v. Celebrezze , 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Burdick v. Takushi , 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), known as the " Anderson / Burdick framework," the State has an important regulatory interest in reducing the administrative burden on poll workers, especially during the busy days immediately following an election. In light of the minimal burden on the voter to sign the affidavit or to correct a missing signature by election day, the State's interest sufficiently justifies the election-day deadline. We next hold that the Anderson / Burdick framework applies equally to Plaintiffs' procedural due process claim and that, accordingly, that claim also fails. We vacate the injunction and remand with the instruction that the court enter judgment for Defendants.

FACTUAL AND PROCEDURAL HISTORY

Arizona implemented early voting in 1925 but limited eligibility to only some voters. Sherman v. City of Tempe , 202 Ariz. 339, 45 P.3d 336, 340 (2002) (citing 1925 Ariz. Sess. Laws, ch. 75 § 1). Beginning in 1991, all of Arizona's voters, not only those who swore that they would be absent on election day, could register to vote by mail. 1991 Ariz. Sess. Laws, ch. 51, § 1.

Today, Arizona's voters may vote by mail during the last four weeks of an election. Ariz. Rev. Stat. §§ 16-541(A), 16-542(C)–(D). Nearly four-fifths of Arizona's voters choose to vote by mail. To vote by mail, a voter must return a completed ballot in a specially provided, postage-paid envelope, and the voter must sign an affidavit that is printed on the envelope. Ariz. Rev. Stat. §§ 16-547, 16-548. The affiant declares, under penalty of perjury, that he or she "voted the enclosed ballot." Id. § 16-547(A). Both the ballot and the signed affidavit must be delivered to the office of the county recorder no later than 7:00 p.m. on election day. Id. § 16-547(C) ; § 16-548(A).

In recognition of the importance of a voter's signature, election officials strive to emphasize the signature requirement on the election materials themselves. For example, election officials in Maricopa County, the state's most populous county, use a variety of instructions and visual clues to direct the voter to the signature requirement. The back of the envelope contains the signature line in a clearly marked, prominent position:

The front of the envelope repeats the signature requirement:

And the instructions include the signature requirement in English, Spanish, and pictograph form:

A ballot with a missing signature is incomplete and cannot be counted. A voter may correct a ballot with a missing signature by submitting a signed replacement ballot. But the voter must do so by the election-day deadline. So far as the record in this case reveals, in the nearly century of early voting in Arizona, no county recorder ever has allowed a voter...