Democratic Nat'l Comm. v. Reagan

• Citation: 904 F.3d 686
• Decision Date: 12 September 2018
• Docket Number: No. 18-15845,18-15845
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

904 F.3d 686

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.

Argued and Submitted July 20, 2018 San Francisco, California

Filed September 12, 2018

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.

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

Dissent by Chief Judge Thomas

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 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.

Most Arizona counties conduct in-person voting through a precinct-based system. Arizona gives each county the responsibility to "establish a convenient number of election precincts in the county and define the boundaries of [those] precincts." Ariz. Rev. Stat. § 16-411(A). Before an election, the County Board of Supervisors (the County's legislative unit) must designate at least one polling place per precinct. Id. § 16-411(B). Arizona law provides some flexibility for counties to combine precincts if each county's board of supervisors makes specific findings. See id. § 16-411(B)(2).

Arizona has long required in-person voters to cast their ballots in their assigned precinct and has enforced this system, since at least 1970, by counting only votes cast in the correct precinct. See Ariz. Rev. Stat. §§ 16-122, 16-135, 16-584 (codified in 1979); 1970 Ariz. Sess. Laws, ch. 151, § 64 (amending Ariz. Rev. Stat. § 16-895); Ariz. Rev. Stat. § 16-102 (1974). If an Arizona voter's name does not appear on the voting register at the polling place on Election Day (either because the voter recently moved or due to inaccuracies in the official records), the voter may vote only by provisional ballot. Ariz. Rev. Stat. §§ 16-122, 16-135, 16-584. Later, the state reviews all provisional ballots and counts those votes cast by voters confirmed to be eligible to vote. Id . §§ 16-135(D), 16-584(D). A provisional ballot cast outside of the voter's correct precinct is not counted. Id . (As mentioned above, DNC refers to Arizona's rejection of improperly cast ballots as Arizona's OOP policy.)

Recently, Arizona has permitted counties to choose between the traditional precinct model and "voting centers," wherein voters from multiple precincts can vote at a single location. Id . § 16-411(B)(4). Each voting center must be equipped to print a specific ballot, correlated to each voter's particular district, that includes all races in which the voter is eligible to vote. Reagan , ––– F.Supp.3d at ––––, 2018 WL 2191664, at *9. Six rural and sparsely populated counties—Graham, Greenlee, Cochise, Navajo, Yavapai, and Yuma—have adopted the voting center model. Id .

As noted above, most Arizona voters (roughly 80 percent in the 2016 general election) do not vote in person. 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(D). All Arizona counties operate at least one on-site early voting location. Reagan , ––– F.Supp.3d at ––––, 2018 WL 2191664, at *7. 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. Id . Moreover, voters can vote early by mail, either for an individual election or by having their names added to a permanent early voting list. Id . 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. Ariz. Rev. Stat. § 16-544(F). Voters may return their early ballot by mail at no cost, id . § 16-542(C), but it must be received by 7:00 p.m. on Election Day, id. § 16-548(A).

Since 1992, Arizona has prohibited any person other than the voter 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 voter 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 explained by the Supreme Court of Arizona, regulations on the distribution of absentee and early ballots advance Arizona's constitutional interest in secret voting, see Ariz....