Leslie Feldman v. Arizona Sec'y of State's Ofc.
2016 U.S. App. LEXIS 19718
| 9th Cir. | 2016Background
- Arizona enacted H.B. 2023, criminalizing most third-party collection/delivery of completed early ballots and limiting collectors to family, household members, certain officials, and caregivers; violations carry jail time and large fines.
- Plaintiffs challenged the law as discriminatory and an undue burden on minority voters (Hispanic, Native American, African-American), seeking a preliminary injunction under the Voting Rights Act and the Constitution.
- District court denied a preliminary injunction; a Ninth Circuit merits panel heard expedited briefing and affirmed the denial by a 2–1 vote.
- The Ninth Circuit then granted rehearing en banc on an accelerated schedule days before the presidential election; judges issued separate concurring and dissenting opinions on the propriety of en banc rehearing and last-minute intervention.
- Chief Judge Thomas (lead order) and a concurring judge emphasized the law’s disparate impact on minorities and the lack of documented fraud; they supported en banc review to address significant voting-rights issues.
- Judge O’Scannlain (dissent) argued rehearing en banc so close to the election risks disruption (Purcell principle), counseled against last-minute injunctions, and criticized the rushed process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether H.B. 2023's ban on most third-party ballot collection violates Voting Rights Act / Equal Protection by imposing disparate burden on minorities | Law disproportionately burdens minority and rural voters who rely on ballot collection; no evidence of fraud justifies the burden | Law prevents potential ballot-harvesting fraud and protects ballot integrity; state has authority to regulate voting procedures | En banc rehearing granted to resolve these merits; panel had affirmed denial of preliminary injunction (2–1); en banc majority will revisit merits |
| Whether expedited en banc rehearing so close to election was appropriate (Purcell) | Urgent electoral timing and significant rights justify rapid en banc review to prevent disenfranchisement before election | Last-minute changes to election procedures are strongly disfavored; Purcell counsel argues against judicial interference close to voting | Court granted rehearing en banc despite dissent warning of Purcell disruption; disagreement among judges remains |
| Whether record supports finding of discriminatory intent or effect sufficient to prevail under Section 2/Voting Rights claims | Plaintiffs point to evidence of disparate impact on Hispanics, Native Americans, the poor, and infirm; historical context and lack of fraud evidence support inference of discrimination | State denies discriminatory purpose, cites neutral fraud-prevention justifications; asserts legislative authority | Panel majority rejected preliminary injunction; concurring judge contends record does show significant disparate burden and pretextual justifications; issue left for en banc resolution |
| Proper scope and timing of preliminary equitable relief (injunction) in election context | Injunction needed to prevent imminent disenfranchisement before election | Injunction would disrupt election administration and conflict with Purcell principle; courts should avoid last-minute changes | Panel denied injunction; en banc rehearing ordered to reexamine whether injunction would be warranted despite timing concerns |
Key Cases Cited
- Purcell v. Gonzalez, 549 U.S. 1 (2006) (counsels against last-minute changes to election rules due to risk of confusion and disruption)
- Shelby County v. Holder, 570 U.S. 529 (2013) (invalidated preclearance formula of Section 5, increasing role of courts in policing voting changes)
- Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) (addressed voter-ID restrictions and balancing burdens on voting against fraud prevention)
- Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012) (staying injunction when election imminence counseled maintaining status quo)
- Crookston v. Johnson, 841 F.3d 396 (6th Cir. 2016) (rejecting last-minute injunctions changing election procedures)
- Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014) (staying injunction to maintain election status quo)
- Colon-Marrero v. Conty-Perez, 703 F.3d 134 (1st Cir. 2012) (noting injunctions on eve of elections are extraordinary)
- Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341 (6th Cir. 2012) (last-minute injunctions changing election procedures are strongly disfavored)