Feldman v. Ariz. Sec'y of State's Office

Decision Date28 October 2016
Docket NumberNo. 16–16698,16–16698
Citation840 F.3d 1057
Parties Leslie Feldman ; Luz Magallanes; Mercedez Hymes; Julio Morera; Cleo Ovalle; Peterson Zah, Former 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, Plaintiffs–Appellants, 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.
CourtU.S. Court of Appeals — Ninth Circuit

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 PlaintiffsAppellants.

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 IntervenorPlaintiffAppellant.

Karen J. Hartman–Tellez (argued) and Kara M. Karlson, Assistant Attorneys General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for DefendantsAppellees.

Sara J. Agne (argued), Colin P. Ahler, and Brett W. Johnson, Snell & Wilmer LLP, Phoenix, Arizona, for IntervenorDefendantsAppellees.

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

Dissent by Chief Judge Thomas


IKUTA, Circuit Judge:

In April 2016, Leslie Feldman and other appellants1 brought an action in district court 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. 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.


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.


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).

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 existing statute imposing penalties for persons abusing the early voting process:

H. A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony. An election official, a United States postal service worker or any other person who is allowed by law to transmit United States mail is deemed not to have collected an early ballot if the official, worker or other person is engaged in official duties.
I. Subsection H of this section does not apply to:
1. An election held by a special taxing district formed pursuant to title 48 for the purpose of protecting or providing services to agricultural lands or crops and that is authorized to conduct elections pursuant to title 48.
2. A family member, household member or caregiver of the voter. For the purposes of this paragraph:
(a) “Caregiver” means a person who provides medical or health care assistance to the voter in a residence, nursing care institution, hospice facility, assisted living center, assisted living facility, assisted living home, residential care institution, adult day health care facility or adult foster care home.
(b) “Collects” means to gain possession or control of an early ballot.
(c) “Family member” means a person who is related to the voter by blood, marriage, adoption or legal guardianship.
(d) “Household member” means a person who resides at the same residence as the voter.

Ariz. Rev. Stat. § 16–1005(H)(I). Thus, this amendment to section 16–1005 makes it a felony for third parties to collect early ballots from voters unless the collector falls into one of many exceptions. See id. The prohibition does not apply to election officials acting as such, mail carriers acting as such, any family members, any persons who reside at the same residence as the voter, or caregivers, defined as any person who provides medical or health care assistance to voters in a range of adult residences and facilities. Id. § 16–1005(I)(2). H.B. 2023 does not provide that ballots collected in violation of this statute are disqualified or disregarded in the final election tally.

Before H.B. 2023's enactment, third-party early ballot collection was available to prospective voters as an additional and convenient means of submitting a ballot. It was also an important part of the Democratic get-out-the-vote strategy in Arizona. Since at least 2002, the Arizona Democratic Party has collected early ballots from its core constituencies, which it views to include Hispanic, Native American, and African American voters. According to Feldman, H.B. 2023's limitation on third-party ballot collection will require the Democratic Party to retool its get-out-the-vote efforts, for example by increasing voter transportation to polling locations and revising its training scripts to focus on early in-person voting. This, in turn, will require the party to divert resources from projects like candidate promotion to more direct voter outreach to ensure that voters are either casting early ballots in person or mailing their ballots on time.


Feldman sued Arizona4 in April 2016 alleging: (1) a violation of § 2 of the Voting Rights Act on account of H.B. 2023's disparate adverse impact on voting opportunities for Hispanics, African Americans, and Native Americans, (2) a denial of equal protection through unjustifiable burdening of the right to vote, (3) a denial of equal protection through disparate treatment, (4) a violation of the First Amendment right to freedom of association, and (5) a violation of the First and Fourteenth Amendments through the “fencing out” of...

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