Leslie Feldman v. Arizona Sec'y of State's Ofc.
840 F.3d 1057
9th Cir.2016Background
- Arizona enacted H.B. 2023 (A.R.S. §16-1005(H)-(I)) criminalizing third-party collection of early ballots (felony) while exempting election officials, mail carriers, family/household members, and caregivers.
- Plaintiffs (voters, Democratic Party committees, and campaigns) challenged the law under §2 of the Voting Rights Act, the Fourteenth Amendment (equal protection/undue burden), and the First Amendment (freedom of association). They sought a preliminary injunction to block enforcement during the 2016 election period.
- Before enactment, third-party ballot collection had been used widely (notably by Democrats) to assist Hispanic, Native American, African-American, rural, elderly, and homebound voters; plaintiffs say the law forces costly adjustments to GOTV operations.
- District court denied the preliminary injunction, finding plaintiffs unlikely to succeed on the merits (no demonstrated §2 disparate impact, minimal burden under Anderson/Burdick balancing, and ballot collection not expressive conduct), and denied injunctive relief pending appeal.
- Ninth Circuit (majority) affirmed: reviewed for abuse of discretion, accepted two-step §2 framework (disparate burden + link to social/historical conditions), held plaintiffs failed to show a causal disparate impact or a severe constitutional burden, and deferred to district court factfinding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| §2 VRA (vote-denial) — does H.B. 2023 deny/abridge minority voting opportunities? | Feldman: socioeconomic gaps cause minorities to rely more on third-party collectors; ban disproportionately burdens minorities and meets Gingles/Senate factors. | Arizona: plaintiffs offered no quantitative evidence showing the law disproportionately affects minorities versus non-minorities; available alternatives mitigate any burden. | Held for Arizona — plaintiffs failed to show that H.B. 2023 causes minorities to have less opportunity than others; district court’s factual conclusion not clearly erroneous. |
| Fourteenth Amendment — does H.B. 2023 impose an undue burden on the right to vote? | Feldman: criminalizing a common, important means of early voting imposes a significant burden, especially where early voting is dominant and polling access is poor. | Arizona: burden is minimal (it removes one method among many); state interests in preventing fraud and preserving confidence justify the restriction under Anderson/Burdick. | Held for Arizona — burden was minimal and justified by important state interests; balancing supports denial of preliminary injunction. |
| First Amendment — does restricting third‑party collection burden associational/expression rights? | Feldman: collection is politically expressive and central to GOTV and associational activity. | Arizona: ballot collection is non-expressive conduct (facilitates voting, not speech); even if expressive, the burden is minimal and justified. | Held for Arizona — ballot collection not inherently expressive; even if implicated, state interests justify the minimal burden. |
| Equitable relief (preliminary injunction timing) — should enforcement be enjoined pending appeal? | Feldman: imminent harm to voters and organizations, need to preserve status quo before election. | Arizona: last-minute injunctions disrupt elections; plaintiffs not likely to succeed or show irreparable harm; public interest favors enforcement. | Held for Arizona — balance of hardships, public interest, and Purcell considerations counsel against an injunction; affirmed. |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (preliminary injunction standard requires likelihood of success and irreparable harm)
- Purcell v. Gonzalez, 549 U.S. 1 (2006) (courts should exercise caution when altering election rules close to an election)
- Thornburg v. Gingles, 478 U.S. 30 (1986) (§2 framework and ‘‘totality of the circumstances’' analysis)
- Crawford v. Marion County Election Board, 553 U.S. 181 (2008) (Anderson/Burdick balancing applied to voter-ID; limited burdens may be justified by important state interests)
- Burdick v. Takushi, 504 U.S. 428 (1992) (Anderson/Burdick balancing test for election-law burdens)
- Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (Ninth Circuit on §2 and the requirement of demonstrating a causal link between law and disparate burden)