Leslie Feldman v. Arizona Sec'y of State's Ofc.
2016 U.S. App. LEXIS 19986
9th Cir.2016Background
- Arizona enacted H.B. 2023 (A.R.S. § 16-1005(H)-(I)), making it a felony for most third parties to collect another person’s early ballot while exempting election officials, mail carriers, family, household members, and certain caregivers.
- Plaintiffs (individual voters, the DNC, Arizona Democratic Party, campaign committees, and others) sued in district court asserting claims under § 2 of the Voting Rights Act, the Fourteenth Amendment (Anderson/Burdick undue-burden framework), and the First Amendment (freedom of association). They sought a preliminary injunction enjoining enforcement of H.B. 2023.
- The district court denied the preliminary injunction, finding plaintiffs unlikely to succeed on the merits (no demonstrated disparate § 2 impact; minimal constitutional burdens justified by anti-fraud interests) and failing to show irreparable harm or that hardships tipped sharply in their favor.
- A Ninth Circuit three-judge merits panel affirmed the denial. The en banc Ninth Circuit, after expedited briefing, granted an injunction pending appeal, adopting reasoning from Chief Judge Thomas’s dissent (which would have found likely success on the merits).
- Multiple judges filed dissents criticizing the en banc injunction as improper on Purcell/election-timing grounds and as premature given the record and precedent; they emphasized deference to the district court and risk of disrupting ongoing elections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether H.B. 2023 violates § 2 of the Voting Rights Act (vote-denial theory) | Plaintiffs: the law disproportionately burdens minorities (who rely more on third-party collectors) and thus denies/abridges voting on account of race under the totality of circumstances. | Arizona: plaintiffs offered no quantitative evidence showing the law causes minorities to have less opportunity than others; no causal link demonstrated. | Ninth Circuit (majority panel): district court did not abuse discretion; plaintiffs failed to show a disparate burden or causal link — § 2 claim unlikely to succeed. En banc order granting injunction adopted dissent reasoning, but merits remain for full en banc review. |
| Whether H.B. 2023 imposes an unconstitutional burden under the Fourteenth Amendment (Anderson/Burdick) | Plaintiffs: criminalizing third-party collection substantially burdens voting (especially for minorities and rural voters) and is not justified by the State’s anti-fraud interests. | Arizona: the burden is minimal because alternatives (mail, in-person early voting, dropoff) remain; preventing fraud and preserving confidence are important regulatory interests. | District court and panel: burden is minimal and justified; plaintiffs unlikely to prevail. En banc: issued injunction pending appeal (preserving pre‑H.B. 2023 status quo) but did not resolve final merits. |
| Whether ballot collection is protected expressive conduct or associational activity under the First Amendment | Plaintiffs: collecting/delivering ballots is political/expressive and part of association/get-out-the-vote activity. | Arizona: ballot collection is non‑expressive conduct (facilitative), and even if expressive, the burden is minimal and justified by anti‑fraud interests. | Ninth Circuit panel: collecting ballots is not inherently expressive; First Amendment claim unlikely to succeed. En banc injunctive order did not finally decide merits. |
| Whether an injunction/stay should issue on the eve of an election | Plaintiffs: prompt filing and the need to preserve status quo ante justify an injunction pending appeal to prevent criminalizing longstanding ballot‑collection practices. | Arizona: Purcell and related precedents counsel strong restraint; last‑minute changes risk voter confusion and disruption. | En banc majority: granted injunction pending appeal, finding Purcell concerns distinguishable and status quo preservation appropriate. Several judges dissented, arguing Purcell requires denying last‑minute relief and emphasizing deference to district court findings. |
Key Cases Cited
- Purcell v. Gonzalez, 549 U.S. 1 (2006) (courts must weigh election‑specific harms and avoid last‑minute changes to election rules)
- Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) (state anti‑fraud and confidence interests can justify limited burdens like voter‑ID under Anderson/Burdick)
- Thornburg v. Gingles, 478 U.S. 30 (1986) (§ 2 totality‑of‑circumstances framework and relevant Senate factors)
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (Anderson/Burdick balancing framework for election law challenges)
- Burdick v. Takushi, 504 U.S. 428 (1992) (endorsing flexible balancing test and means‑end fit inquiry for burdens on voting)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction standard requires likelihood of success and irreparable harm)
- Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983) (standard for injunctions pending appeal analogous to preliminary injunction standard)