Leslie Feldman v. Arizona Sec'y of State's Ofc.
842 F.3d 613
9th Cir.2016Background
- Arizona requires in-person voters to cast ballots at their assigned precinct or vote centers; ballots cast out-of-precinct (OOP) on election day are rejected and not counted for any contests. Mail-in and early in-person voting are available alternatives.
- Feldman and other plaintiffs (voters and political committees) sued under §2 of the Voting Rights Act (VRA) and the Fourteenth Amendment, seeking a preliminary injunction requiring counting of eligible portions of OOP provisional ballots.
- Experts (credited for injunction purposes) showed minorities were overrepresented among OOP voters in several Arizona population centers; Arizona reported roughly 0.5% of ballots cast OOP and rejected in 2012.
- The district court denied a preliminary injunction, finding Feldman unlikely to succeed on the merits of her §2 and constitutional claims and that irreparable harm, balance of equities, and public interest did not favor injunction.
- On expedited appeal, the Ninth Circuit majority affirmed: it assumed, without deciding, a disparate burden at step one of §2 but held Feldman failed step two (no proven link between the burden and social/historical discrimination) and found only a minimal constitutional burden under Anderson-Burdick justified by administrative interests.
- A dissent argued the statistical disparities, historical and socioeconomic evidence, and practical effects showed a likely §2 violation and that the Fourteenth Amendment balancing favored injunctive relief to count eligible votes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arizona’s precinct-vote rule violates §2 of the VRA by imposing a discriminatory burden on minority voters | Feldman: statistics show minorities disproportionately cast OOP ballots; this disparate burden denies minorities equal opportunity to participate and is linked to historical/socioeconomic discrimination | Arizona: higher OOP rates do not prove the rule causes reduced opportunity; no evidence of misinformation or that precinct locations were placed to disadvantage minorities | Majority: assumed disparate burden for step one but affirmed denial because Feldman failed step two—no sufficient causal link to social/historical discrimination; therefore unlikely to succeed on §2 claim |
| Whether the Gingles factors (totality of circumstances) are satisfied to show §2 violation | Feldman: Gingles factors (history of discrimination, socioeconomic disparities, language barriers, racial polarization) support step-two linkage | Arizona: plaintiff experts’ reports contain errors/overreach; socioeconomic disparities alone insufficient to show the required causal link; state interest in precinct system relevant | Majority: district court’s factual findings on Gingles not clearly erroneous; evidence insufficient to show challenged practice interacts with historical discrimination to cause inequality |
| Whether Arizona’s precinct-vote rule violates the Fourteenth Amendment under Anderson-Burdick | Feldman: rejecting OOP ballots disenfranchises voters and imposes more than a minimal burden given the numbers and practical effects on minorities | Arizona: the rule imposes only a minimal burden (requires voting at assigned site); strong administrative interests (efficiency, fraud prevention, ballot-tailoring) justify the rule | Majority: rule imposes minimal burden; administrative interests justify it; constitutional challenge unlikely to succeed |
| Whether preliminary injunctive relief was warranted (irreparable harm, balance of equities, public interest) | Feldman: disenfranchisement is irreparable; counting eligible portions would not disrupt administration and would remedy ongoing harm | Arizona: substantial administrative burden and delay; changing procedures close to election harms election administration and public interest | Majority: because plaintiffs unlikely to win on merits, irreparable harm and balance/public-interest factors do not favor injunction; affirm denial |
Key Cases Cited
- Thornburg v. Gingles, 478 U.S. 30 (1986) (establishes multi-factor totality-of-circumstances test for §2 vote-denial claims)
- Burdick v. Takushi, 504 U.S. 428 (1992) (Anderson-Burdick balancing for burdens on voting rights)
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (framework for assessing burdens on voting and state interests)
- Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) (upholding a voter-ID rule as not a substantial burden under Fourteenth Amendment)
- Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (discusses §2 and burdens of proof regarding statistical disparities)
- League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014) (§2 framework emphasizing link to social/historical conditions)
- Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016) (discusses causal linkage requirement in §2 analysis)
- United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (standard for reviewing factual findings for clear error)