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, 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.
No. 16-16698
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
OCT 28 2016
D.C. No. 2:16-cv-01065-DLR
FOR PUBLICATION
BERNIE 2016, INC., Intervenor-Plaintiff-Appellant,
OPINION
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted October 19, 2016
San Francisco, California
Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge
In April 2016, Leslie Feldman and other appellants1 brought an action in district court challenging Arizona House Bill 2023
I
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.
A
Arizona law permits “[a]ny qualified elector”3 to “vote by early ballot.”
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
Arizona
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:
- 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.
- A family member, household member or caregiver of the voter. For the purposes of this paragraph:
- “Caregiver” means a рerson 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.
- “Collects” means to gain possession or control of an early ballot.
- “Family member” means a person who is related to the voter by blood, marriage, adoption or legal guardianship.
- “Household member” means a person who resides at the same residence as the voter.
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
B
Feldman sued Arizona4 in April 2016 alleging: (1) a violation of
In June, Feldman moved for a preliminary injunction prohibiting the enforcement of H.B. 2023. After full briefing, the district court denied the motion on September 23, 2016, on the ground that Feldman was not likely to succeed on the merits of any of her claims and had therefore also not shown a likelihood of irreparable harm. As to the § 2 claim, the district court reviewed the totality of the evidentiary record and found no evidence of a cognizable disparity between minority and non-minority voters. The district court held that Feldman was unlikely to succeed on her Fourteenth Amendment claim because H.B. 2023‘s burden on voting was minimal and justified by the State‘s interests in preventing absentee voter fraud and the perception of fraud. As to Feldman‘s First Amendment claims, the district court held that collecting ballots is not an expressive activity and that even if it were, the State‘s regulatory interests were sufficient to justify the slight burden that H.B. 2023 imposes. The district court likewise ruled that Feldman was unlikely to succeed on her partisan fencing claim.
Feldman filed a timely notice of interlocutory appeal on the same day that the district court entered its order, and a few days later she filed an emergency motion in the district court to stay its order and enjoin the enforcement of H.B. 2023 pending appeal. The district court noted that the standard for obtaining an injunction pending appeal was the same as the standard for obtaining a preliminary injunction and denied the motion because Feldman had not shown that she was likely to succeed on the merits, Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008), or that “there are serious questions going to the merits” and “the balance of hardships tips sharply in the plaintiff‘s favor.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
Feldman filed an emergency motion with this court for an injunction pending
II
We have jurisdiction over this interlocutory appeal pursuant to
Our abuse-of-discretion analysis proceeds in two steps. See Gilman v. Schwarzenegger, 638 F.3d 1101, 1105–06 (9th Cir. 2011) (citing United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc)). At step one, we ask whether the district court “based its ruling on an erroneous view of the law,” Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999), reviewing the district court‘s interpretation of underlying legal principles de novo, Shelley, 344 F.3d at 918. We then ask whether the district court‘s application of the legal standard was illogical, implausible, or otherwise without support in inferences that may be drawn from the facts in the record. Hinkson, 585 F.3d at 1262. “We review findings of fact for clear error.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir. 2013). “[A]s long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.” Id. (quoting Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011)).6
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. The standard to obtain such relief is accordingly stringent: “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. A plaintiff must make a showing as to each of these elements, although in our circuit “if a plaintiff can only show that there are ‘serious questions going to the merits‘—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff‘s favor,’ and the other two Winter factors are satisfied.” Shell Offshore, 709 F.3d at 1291. “That is, ‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies, 632 F.3d at 1135.
When faced with a request to interfere with a state‘s election laws “just weeks before an election,” federal courts are “required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). These considerations often counsel restraint. In the context of legislative redistricting, for example, the Supreme Court has long cautioned that “where an impending election is imminent and a State‘s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief . . . even though the existing apportionment scheme was found invalid.” Reynolds v. Sims, 377 U.S. 533, 585 (1964). Similarly, the Supreme Court has declined to order thе printing of new ballots at a “late date” even where the existing ballots were held to have unconstitutionally excluded certain candidates. Williams v. Rhodes, 393 U.S. 23, 34 (1968). We have also declined on equitable grounds to interfere with the mechanics of fast-approaching elections. See Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012) (staying a district court‘s injunction “given the imminent nature of the election“); Shelley, 344 F.3d at 919 (declining to enjoin an imminent recall election). And we are not alone in doing so. See, e.g., Veasey v. Abbott, 830 F.3d 216, 243 (5th Cir. 2016) (en banc) (“[T]he district court should fashion an appropriate remedy in accord with its findings; provided, however, that any remedy will not be made effective until after the November 2016 election.“); Veasey v. Perry, 769 F.3d 890, 895 (5th Cir. 2014) (staying an injunction “in light of the importance of maintaining the status quo on the eve of an election“); Colon-Marrero v. Conty-Perez, 703 F.3d 134, 139 n.9 (1st Cir. 2012) (noting that “even where plaintiff has demonstrated a likelihood of success, issuing an injunction on the eve of an election is an extraordinary remedy with risks of its own“); Serv. Emps. Int‘l Union Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir. 2012) (“As a general rule, last-minute injunctions changing election procedures are strongly disfavored.“); Ne. Ohio Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1012 (6th Cir. 2006) (vacating in part a temporary restraining order that “needlessly creates disorder in electoral processes“).
III
With these principles in mind, we turn to our review of the district court‘s order denying Feldman‘s motion for a preliminary injunction against the enforcement of H.B. 2023. On appeal, Feldman argues
A
We first consider Feldman‘s claim that H.B. 2023 violates § 2 of the Voting Rights Act.
1
“Inspired to action by the civil rights movement,” Congress enacted the
“At the time of the passage of the Voting Rights Act of 1965, § 2, unlike other provisions of the Act, did not provoke significant debate in Congress because it was viewed largely as a restatement of the Fifteenth Amendment.” Chisom v. Roemer, 501 U.S. 380, 392 (1991). In 1980, a plurality of the Supreme Court held that the Fifteenth Amendment, and therefore the Voting Rights Act, were violated only if there was intentional discrimination on account of race. City of Mobile v. Bolden, 446 U.S. 55, 60–62 (1980) (plurality opinion).
In response to Bolden, “Congress substantially revised § 2 to make clear that a violation could be proved by showing discriminatory effect alone and to establish as the relevant legal standard the ‘results test,‘” applied by the Supreme Court in White v. Regester, 412 U.S. 755 (1973), and by other federal courts before Bolden. Thornburg v. Gingles, 478 U.S. 30, 35 (1986). Opinions decided before Bolden had addressed “vote dilution” claims, that is, challenges to practices that diluted a minority group‘s voting power. See Shaw v. Reno, 509 U.S. 630, 641 (1993). In amending § 2, Congress acted to “prohibit legislation that results in the dilution of a minority group‘s voting strength, regardless of the legislature‘s intent.” Id. (emphasis omitted); see also Gingles, 478 U.S. at 47–51. Section 2 also applied to “vote denial” claims, meaning challenges to practices that denied citizens the opportunity to vote, such as literacy tests.
As amended in the 1982 amendments, Section 2 of the Voting Rights Act provides:
§ 10301 . Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation(a) No voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
The Supreme Court interpreted this language in Thornburg v. Gingles, 478 U.S. 30. Gingles explained that to make out a § 2 violation, a plaintiff must show that “under the totality of the circumstances, a challenged election law or procedure had the effect of denying a protected minority an equal chance to participate in the electoral process.” Id. at 44 n.8. The “totality of the circumstances” includes factors that the Senate derived from cases decided before Bolden. See id.9 As summarized by the Court, “[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Id. at 47.
Although many courts have analyzed vote dilution claims, “there is little authority on the proper test to determine whether the right to vote has been denied or abridged on account of race.” Veasey v. Abbott, 830 F.3d at 244 (emphasis omitted); see also Ohio Democratic Party v. Husted, — F.3d —, No. 16-3561, 2016 WL 4437605 (6th Cir. Aug. 23, 2016).10 Recently, the Fourth, Fifth, and Sixth Circuits (and, in part, the Seventh Circuit) have adopted a two-part framework, based on the text of § 2 and the Supreme Court‘s guidance in Gingles. The test is as follows:
League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014); Veasey v. Abbott, 830 F.3d at 244; Ohio Democratic Party, 2016 WL 4437605 at *13-14; Frank v. Walker, 768 F.3d 744, 754-55 (7th Cir. 2014) (adopting the test “for the sake of argument“).[1] [T]he challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, [and]
[2] [T]hat burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.
We agree with this two-part framework, which is consistent with Supreme Court precedent, our own precedent, and with the text of
In interpreting this first prong, we have held that “a bare statistical
The second prong “draws on the Supreme Court‘s guidance in Gingles,” Veasey v. Abbott, 830 F.3d at 245, which explains the language in § 2(b) requiring a plaintiff to show a violation of the Act “based on the totality of circumstances.”
The district court‘s legal determinations are reviewed de novo, Gonzalez, 677 F.3d at 406, but we defer to “the district court‘s superior fact-finding capabilities,” and review its factual findings for clear error, Salt River, 109 F.3d at 591. In analyzing the first prong of a § 2 claim, the district court has the primary responsibility for determining “based upon a searching practical evaluation of the past and present reality,’ . . . whether the political process is equally open to minority voters.” Id. (quoting Gingles, 478 U.S. at 79). At the second prong of a § 2 claim, the district court must make the “ultimate finding whether, under the totality of the circumstances, the challenged practice violates § 2.” Gonzalez, 677 F.3d at 406. This “ultimate finding” is a question of fact that we review for clear error.11 Id.
This case raises a vote denial claim, in that Feldman claims that H.B. 2023‘s restriction on the use of certain third-party ballot collectors denies or abridges minorities’ opportunity to vote. As to the first prong of a § 2 claim, Feldman argues that H.B. 2023 caused minority group members to have less opportunity to participate in the political process than non-minorities. Feldman bases this claim on a multi-step argument. First, Feldman points to evidence in the record that minorities are statistically less likely than non-minorities to have access to a vehicle, are more likely to have lower levels of education and English proficiency than non-minorities, are more likely to suffer from health problems than non-minorities, are more likely to have difficult financial situations than non-minorities, and are more likely than non-minorities to rent houses rather than own them, which in turn makes them more likely to move than homeowners. Second, she argues that each of these differences between minorities and non-minorities shows that minorities must rely on ballot collection by third parties more than non-minorities because minorities have less ability to make use of other alternative means of voting (such as voting by mail or in person). According to Feldman, this evidence shows that the burdens of H.B. 2023 fall more heavily on minorities than non-minorities. Feldman further contends that she satisfied the second prong of the § 2 test by introducing substantial evidence supporting eight of the nine Senate Factors.
The district court rejected this argument at the first prong of the § 2 test based on its determination that Feldman failed to show that H.B. 2023 will cause protected minorities to have less electoral opportunities than non-minorities. The district court based its conclusion on both a per se legal rule and on its review of the evidence. First, the district court held that Feldman failed to provide any quantitative or statistical data showing that H.B. 2023‘s rule precluding the use of certain third-party ballot collectors had a disparate impact on minorities compared to the impact on non-minorities. The district court determined that as a matter of law, such data was necessary in order to establish a § 2 violation. Feldman does not dispute that she did not provide any direct data on the use of third-party ballot collectors,12 but argues such data is not necessary to show a disproportionate impact on minorities, and so the district court‘s ruling to the contrary was legal error.
Notably, Feldman did present statistical evidence in our companion case, discussed supra n.5.
We need not resolve this legal issue, however, because despite its ruling regarding the lack of statistical or quantitative evidence, the district court proceeded to review all the evidence in the record and rested its conclusion that Feldman had failed to satisfy the first prong of § 2 on the alternate ground that Feldman did not show that the burden of H.B. 2023 impacted minorities more than non-minorities. Deferring to “the district court‘s superior fact-finding capabilities,” Salt River, 109 F.3d at 591, we conclude that this holding is not clearly erroneous.
To satisfy the first prong, Feldman adduced several different categories of evidence, including individual declarations, legislative history, and files from the Department of Justice.
First, the record includes the declarations of Arizona Democratic lawmakers and representatives of organizations that have collected and returned ballots in prior elections. These declarations generally state that members of the communities they have assisted rely on ballot collection services by third parties. The district court discounted this testimony because the declarants did not provide any comparison between the minority communities and non-minority communities. The record supports this finding. The majority of the declarants focused their efforts and obtained their experiences in minority
Other declarations submitted to the district court stated generally that ballot collection by third parties benefits elderly voters, homebound voters, forgetful voters, undecided voters, and voters from rural areas, but the court found no evidence that these categories of voters were more likely to be minorities than non-minorities. Again, this finding is not clearly erroneous. For instance, the district court stated that while Feldman had provided evidence that the rural communities of Somerton and San Luis were 95.9% and 98.7% Hispanic or Latino and lacked home mail delivery, she did not provide evidence about home mail delivery to non-minorities who reside in the rural communities of Colorado City, Fredonia, Quartzite, St. David, Star Valley, and Wickenburg that are 99.5%, 89.1%, 92.5%, 92.1%, 91.4%, and 90.5% white, respectively. Similarly, while the record shows that the Tohono O‘odham Nation lacks home mail delivery service, Feldman does not point to evidence showing that H.B. 2023 has a disproportionate impact on members of the Tohono O‘odham Nation compared to non-minorities who also live in rural communities.16 The district court also rejected Feldman‘s argument that declarations provided by Sergio Arellano, President of the Tucson Chapter of the Arizona Latino Republican Association, and Kevin Dang, President of the Vietnamese Community of Arizona, admitted that “minority voters disproportionately rely on ballot collection.” The district court concluded that these declarations indicated only that minorities are disproportionately vulnerable to being taken advantage of by ballot collectors because they often do not understand English. This conclusion was not clear error.
Finally, the district court considered the Department of Justice‘s files regarding its evaluation of S.B. 1412 (a prior Arizona bill proposing ballot collection restrictions) for purposes of determining whether the bill was entitled to preclearance under § 5 of the Voting Rights Act.17 The file contained summaries of telephone conversations between a Department of Justice attorney and various individuals about ballot collection practices in Arizona. None of these summaries provide a comparison of the effect of S.B. 1412 on minorities and non-minorities. Feldman claims that a summary of a phone call with then-Arizona Elections Director Amy Bjelland shows that Arizona legislators targeted S.B. 1412 at Hispanic communities. The district court, however, reasonably interpreted this phone summary as stating that the impetus for S.B. 1412 was an accusation of voter fraud in San Luis, a predominately Hispanic area in the southern portion of Arizona, that S.B. 1412 was aimed at this sort of fraud, and that in Bjelland‘s view, voter fraud was more prevalent at the border because individuals living closer to the border are more impacted by corruption and voting fraud claimed to exist in Mexico.
On appeal, Feldman argues that the district court erred because it did not accept her multi-step argument that she met the first prong of § 2 based on evidence that certain socioeconomic circumstances disparately impact minorities, and this disparate impact would combine with a lack of certain third-party ballot collectors to lessen minorities’ opportunities in the political process. We reject this argument. Feldman‘s evidence of differences in the socioeconomic situation of minorities and non-minorities does not satisfy the first prong of the § 2 test because it does not show that H.B. 2023 causes a protected minority group to have less opportunity than other members of the electorate to participate in the political process. See Gingles, 478 U.S. at 44 n.8. Proof of a cаusal connection between the challenged voting practice and a prohibited result is “crucial,” Gonzalez, 677 F.3d at 405 (citing Salt River, 109 F.3d at 591), and Feldman points to no evidence that the restriction on third-party ballot collection causes minorities to have less opportunity to vote than non-minorities. Indeed, although H.B. 2023 was in effect for all but the first three days of early voting for the Primary Election, the record does not include any testimony by minority voters that their ability to participate in the political process was affected by the inability to use a third-party ballot collector. The district court did not clearly err in declining to make the inference urged by Feldman (i.e., that due
We rejected a similar argument in Gonzalez. As in this case, the plaintiff in Gonzalez argued that a law requiring prospective voters to obtain a photo identification before they cast ballots at the polls violated § 2 because it had a statistically significant disparate impact on Latino voters. Gonzalez, 677 F.3d at 406. To support this argument, the plaintiff presented evidence “of Arizona‘s general history of discrimination against Latinos and the existence of racially polarized voting.” Id. at 407. Despite this general history of discrimination, we affirmed the district court‘s rejection of this claim, because the plaintiff was unable to produce evidence that the photo identification law caused minorities to have less opportunity to participate in the political process. Id.; see also Frank, 768 F.3d at 752-55 (holding that a photo identification law which had a disparate impact on minorities did not violate § 2 because plaintiffs failed to show that the law had caused a discriminatory result). For the same reason, Feldman‘s evidence regarding the socioeconomic situation of minorities is insufficient in the absence of evidence that H.B. 2023 caused minorities to have less opportunity to participate in the political process.
In short, the district court did not clearly err in concluding that Feldman adduced no evidence showing that H.B. 2023 would have an impact on minorities different than the impact on non-minorities, let alone that the impact would result in less opportunity for minorities to participatе in the political process as compared to non-minorities.18 Because the court found that Feldman‘s § 2 claim failed at the first prong, as in Gonzalez, the district court had no obligation to reach the second prong, and therefore did not err in declining to consider whether H.B. 2023 interacted with racial discrimination to cause a discriminatory result. See Gonzalez, 677 F.3d at 407.19 The district court‘s conclusion that H.B. 2023 did not violate § 2 was not “(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record,” Hinkson, 585 F.3d at 1262 (internal quotation marks omitted). Therefore, we hold that the district court did not abuse its discretion in finding Feldman was unlikely to succeed on her Voting Rights Act claim.
B
Feldman also contends that the district court erred in concluding that her facial challenge to H.B. 2023 on constitutional grounds was unlikely to succeed on the merits. We first lay out the analytical
1
The Constitution grants the States a “broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives.‘” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008) (quoting
However, when a state exercises its power and discharges its obligation “[t]o achieve these necessary objectives,” the resulting laws “inevitably affect[]—at least to some degree—the individual‘s right to vote and his right to associate with others for political ends.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Therefore, the state‘s “power is not absolute, but is ‘subject to the limitation that [it] may not be exercised in a way that violates . . . specific provisions of the Constitution.‘” Wash. State Grange, 552 U.S. at 451 (alterations in original) (quoting Williams, 393 U.S. at 29). While the Constitution does not expressly guarantee the right to vote in state and federal elections, the Fourteenth Amendment protects a citizen‘s right “to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). That is, “once the franchise is granted to the electorate, lines may not be drаwn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665 (1966). Similarly, “[w]hile the freedom of association is not explicitly set out in the [First] Amendment,” Healy v. James, 408 U.S. 169, 181 (1972), “the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment . . . as an indispensable means of preserving other individual liberties,” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). This right includes the ability “to associate . . . for the advancement of common political goals and ideas,” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997), and “the ability of citizens to band together in promoting among the electorate candidates
The Supreme Court has explained that constitutional challenges to election laws “cannot be resolved by any ‘litmus-paper test’ that will separate valid from invalid restrictions.” Anderson, 460 U.S. at 789. Rather, “a more flexible standard applies.” Burdick, 504 U.S. at 434. “A court considering a challenge to a state election law must weigh [1] ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against [2] ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration [3] ‘the extent to which those interests make it necessary to burden the plaintiff‘s rights.‘” Id. (quoting Anderson, 460 U.S. at 789). This framework is generally referred to as the Anderson/Burdick balancing test. In applying this test, we: (1) identify and determine the magnitude of the burden imposed on voters by the election law; (2) identify the State‘s justifications for the law; and (3) weigh the burden against the State‘s justifications. The severity of the burden that an election law imposes “is a factual question on which the plaintiff bears the burden of proof.” Democratic Party of Haw. v. Nago, 833 F.3d 1119, 1122-24 (9th Cir. 2016) (citing Cal. Democratic Party, 530 U.S. 567); Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th Cir. 2007) (noting that whether an election law imposes a severe burden is an “intensely factual inquiry“).
“[T]he severity of the burden the election law imposes on the plaintiff‘s rights dictates the level of scrutiny applied by the court.” Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 729 (9th Cir. 2015) (quoting Nader v. Cronin, 620 F.3d 1214, 1217 (9th Cir. 2010) (per curiam)). “This is a sliding scale test“: when the burden imposed is severe, not only the “more compelling the state‘s interest must be,” Ariz. Green Party v. Reagan, 838 F.3d 983, No. 14-15976, 2016 WL 5335037, at *4 (9th Cir. Sept. 23, 2016), but the regulation also “must be ‘narrowly drawn to advance a state interest of compelling importance,‘” Burdick, 504 U.S. at 434 (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).
By contrast, “when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State‘s important regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at 788); see also Ariz. Green Party, 2016 WL 5335037, at *4 (“[A] state may justify election regulations
imposing a
Finally, the Supreme Court has warned that facial challenges “are best when infrequent,” Sabri v. United States, 541 U.S. 600, 608 (2004), and “are disfavored for several reasons” in the election law context in particular, Wash. State Grange, 552 U.S. at 450. For instance, Arizona “has had no opportunity to implement [H.B. 2023], and its courts have had no occasion to construe the law in the context of actual disputes arising from the electoral context, or to accord the law a limiting construction to avoid constitutional questions.” Id. “Claims of facial invalidity often rest on speculation,” and “raise the risk of “premature interpretation of statutes on the basis of factually barebones records.“” Id. (quoting Sabri, 541 U.S. at 609). When faced with underdeveloped “evidence regarding the practical consequences of [H.B. 2023], we find ourselves in the position of Lady Justice: blindfolded and stuck holding empty scales.” Ariz. Green Party, 2016 WL 5335037, at *6 (quoting Ariz. Libertarian Party, 798 F.3d at 736 (McKeown, J., concurring)). Accordingly, plaintiffs asserting a facial challenge “bear a heavy burden of persuasion,” the magnitude of which the Supreme Court has reminded us “to give appropriate weight.” Crawford, 553 U.S. at 200.
2
We now turn to Feldman“s Fourteenth Amendment claim. Feldman claims that the district court made a number of errors in determining that she was unlikely to prevail on the merits of her claim that H.B. 2023 imposes an undue burden on Arizona voters that is not outweighed by the State“s asserted interests.
Feldman first argues that the district court erred in its application of the Anderson/Burdick framework. Under this framework, a district court must first consider the burden posed by H.B. 2023. Burdick, 504 U.S. at 434. In considering this burden, we must take care to avoid the “sheer speculation” that often accompanies the assessment of burdens when considering facial challenges. Wash. State Grange, 552 U.S. at 454; see also Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 866 (9th Cir. 2008) (“In any event, a speculative, hypothetical possibility does not provide an adequate basis to sustain a facial challenge.“).
Here, the district court did not clearly err in finding that H.B. 2023 did not “significantly increase the usual burdens of voting.” As an initial matter, H.B. 2023 on its face imposes less of a burden than the challenged law did in Crawford. Crawford considered the impact of Indiana“s voter-ID law, which required voters who lacked photo ID to sustain “the inconvenience of
Crawford“s finding of a limited burden compels a similar conclusion here. While the Indiana photo ID law imposed an affirmative requirement that voters possess photo ID in order to vote, H.B. 2023 limited only one of several methods of voting that Arizona law otherwise makes available: only third-party ballot collectors who do not qualify under the statute are precluded from delivering ballots. The district court“s conclusion that the limitation of one alternative for ballot collection does not “represent a significant increase over the usual burdens of voting” is not clearly erroneous. Crawford, 553 U.S. at 198; see Ohio Democratic Party, 2016 WL 4437605, at *6 (rejecting a challenge to Ohio“s “withdrawal of the convenience of same-day registration” and holding that the Constitution does not “require all states to maximize voting convenience“).21
Further, any burden imposed by H.B. 2023 is mitigated by the availability of alternative means of voting. The lead opinion in Crawford held that the burden imposed by Indiana“s voter-ID law was “mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots,” even though doing so required a voter to make two trips: the first to vote and the second to execute the required affidavit. 553 U.S. at 199. Here, H.B. 2023 could at most require that a voter make that first trip—to vote in the first instance. Because making two trips does not represent a burden “over the usual burdens of voting” in Crawford, id. at 198, the district court could reasonably determine that the single trip required here does not represent such a burden, either. Although Feldman contends that “thousands” of Arizona voters rely on third-party ballot collection in order to cast their early ballots,” the record does not support her additional claim that without ballot collection by third parties disqualified by H.B. 2023, many Arizona voters “would not have been able to vote in prior elections.”
Feldman also argues that the district court erred in failing to consider the burdens imposed on specific groups of voters for whom H.B. 2023 poses a more serious challenge. We disagree, because the evidence in the record was insufficient for such an analysis. While a court may consider a law“s impact on subgroups, there must be sufficient evidence to enable a court “to quantify the burden imposed on the subgroup.” Pub. Integrity All., 2016 WL 4578366, at *3 n.2 (citing Crawford, 553 U.S. at 199–203; id. at 212–17 (Souter, J., dissenting)); see also Ne. Ohio Coal. for the Homeless v. Husted, — F.3d —, Nos. 16-3603, 16-3691, 2016 WL 4761326, at *11–12 (6th Cir. Sept. 13, 2016) (holding that Crawford may permit “weighing the “special burden” faced by “a small number of voters“” when there is “quantifiable evidence from which an arbiter could gauge the frequency with which this narrow class of voters has been or will become disenfranchised,” but that in the absence of such evidence, a court should “consider the burden that the provisions place on all . . . voters.” (quoting Crawford, 553 U.S. at 200)), reh“g en banc denied, F.3d, 2016 WL 5939925 (6th Cir. Oct. 6, 2016). In Crawford, the Court acknowledged that the photo ID requirement placed “a somewhat heavier burden . . . on a limited number of persons,” but did not consider this burden because it was “not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.” 553 U.S. at 199–200. Accordingly, the Court instead considered “the statute“s broad application to all . . . voters.” Id. at 202–03 (quoting Burdick, 504 U.S. at 439). Here, the record includes broad assertions regarding the number of ballots previously collected, but does not include sufficient “concrete evidence” of “the number of registered voters” within specific groups or evidence that permits weighing of the burden on these voters, such as whether H.B. 2023 would merely inconvenience these voters or preclude them from voting. Id. at 200–01. Given the paucity of evidence regarding these key issues, the district court did not err in declining to focus on the burden on specific groups. See id. at 201–02. We conclude that the district court did not clearly err in identifying and assessing the burden imposed by H.B. 2023.
Because the district court did not clearly err in its determination of the burden imposed by H.B. 2023 on the right to vote, we proceed to the second step of the Anderson/Burdick framework and consider Arizona“s interests. Feldman does not dispute that Arizona“s interest in preventing absentee-voting fraud and maintaining public confidence in elections are “relevant and legitimate state interests,” Crawford, 553 U.S. at 191, nor could she. “A State indisputably has a compelling interest in preserving the integrity of its election process.” Purcell, 549 U.S. at 4 (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989)). “While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.” Crawford, 553 U.S. at 196. Similarly, “public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.” Id. at 197. And as the district court correctly recognized, absentee voting may be particularly susceptible to fraud, or at least perceptions of it. See Crawford, 553 U.S. at 225 (Souter, J., dissenting); Griffin v. Roupas, 385 F.3d 1128, 1131 (7th Cir. 2004); see also United States v. Townsley, 843 F.2d 1070 (8th Cir. 1988). The district court did not err in crediting Arizona“s important interest in preventing fraud even in the absence of evidence that voter fraud had been a significant problem in the past. In Crawford, the Court noted that “[t]he record contains no evidence of any such fraud actually occurring,” but nonetheless concluded that “not only is the risk of voter fraud real but . . . it could affect the outcome of a close election.” 553 U.S. at 194–96; see also Ohio Democratic Party, 2016 WL 4437605, at *9; Frank, 768 F.3d at 749–50. Courts recognize that legislatures need not restrict themselves to a reactive role: legislatures are “permitted to respond to potential deficiencies in the
Feldman also contends that the district court made several legal errors in assessing Arizona“s interests and in weighing them against the burden on voters. First, Feldman argues that the district court erred in holding that “laws that do not significantly increase the usual burdens of voting do not raise substantial constitutional concerns.” We disagree. It is axiomatic that under a balancing test such as Anderson/Burdick“s, less weight on one side of the scale allows that scale to be more easily tipped in the other direction. “[W]hen a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State“s important regulatory interests are generally sufficient to justify” the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788).
Second, Feldman argues that the district court failed to consider the means-end fit between Arizona“s interests in preventing absentee-voting fraud and eliminating the perception of fraud on the one hand and the burdens imposed on voters on the other hand. Relying on a vacated Sixth Circuit opinion, see Ohio State Conference of the NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014), vacated, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014), Feldman argues that Arizona was required to “explain why the particular restriction imposed is actually necessary,” id. at 545. Again, we disagree. The lead opinion in Crawford held that a limited burden on voters” rights imposed by the challenged law was outweighed by two “unquestionably relevant” interests offered by the state, without considering the fit between those interests and the voter-ID law. See 553 U.S. at 203. And as several of our sister circuits have recognized, it is “practically self-evidently true” that implementing a measure designed to prevent voter fraud would instill public confidence. Ohio Democratic Party, 2016 WL 4437605, at *9 (citing Crawford, 553 U.S. at 197); see Frank, 768 F.3d at 750 (noting that Crawford took “as almost self-evidently true” the relationship between a measure taken to prevent voter fraud and promoting voter confidence). By asserting its interest in preventing election fraud and promoting public confidence in elections, essentially the same interests as in Crawford, Arizona bore its burden of establishing “important regulatory interests” sufficient to justify the minimal burden imposed by H.B. 2023. Accordingly, the district court could reasonably conclude that Arizona“s means—restricting third-party ballot collection—matched the desired ends of preventing voter fraud and promoting voter confidence in the electoral system.22
In sum, we conclude that the district court did not clearly err in finding that H.B. 2023 imposed a minimal burden on voters” Fourteenth Amendment right to vote, in finding that Arizona asserted sufficiently weighty interests justifying the limitation, and in ultimately concluding that Feldman failed to establish that she was likely to succeed on the merits of her Fourteenth Amendment challenge.
3
We next consider Feldman“s First Amendment claim. According to Feldman, the district court undervalued the expressive significance of ballot collection when it concluded that she was unlikely to succeed on the merits of her First Amendment freedom of association claim. Feldman contends that through ballot collection, individuals and organizations convey their support for the democratic process and for particular candidates and political parties. For example, declarant Ian Danley stated that his coalition, One Arizona, helps its “voters ensure that their voices are heard on Election Day” by “collecting and personally delivering their signed, sealed early ballots.” Similarly, declarant Rebekah Friend stated that under H.B. 2023, the Arizona State Federation of Labor will have difficulty fulfilling its goal of encouraging its members to register and vote because it “will no longer be able to help its members or other voters vote by taking their signed, sealed early ballots to the Recorder“s office.” Therefore, Feldman argues, “ballot collectors convey that voting is important not only with their words but with their deeds.”
We first consider whether ballot collection is expressive conduct protected under the First Amendment. See Clark, 468 U.S. at 293 n.5 (“[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. To hold otherwise would be to create a rule that all conduct is presumptively expressive.“). We agree with the district court that it is not. Even if ballot collectors intend to communicate that voting is important, “[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O“Brien, 391 U.S. 367, 376 (1968). Unlike burning an American flag or wearing a military medal, ballot collection does not convey a message that “would reasonably be understood by the viewer to be communicative.” Swisher, 811 F.3d at 311 (quoting Clark, 468 U.S. at 294). Rather, a viewer would reasonably understand ballot collection to be a means of facilitating voting, not a means of communicating a message. See, e.g., Voting for Am., Inc. v. Steen, 732 F.3d 382, 392 (5th Cir. 2013) (concluding that collecting and delivering voter registration applications is “merely conduct” because “there is nothing inherently expressive” about it).
While political organizations undoubtedly engage in protected activities, ballot collection does not acquire First Amendment protection merely because it is carried out along with protected activities and speech. See Forum for Acad. & Institutional Rights, Inc., 547 U.S. at 66 (concluding that “combining speech and conduct” is not enough to create expressive conduct); Voting for Am., 732 F.3d at 389 (“The Court also has repeatedly explained that non-expressive conduct does not acquire First Amendment protection whenever it is combined with another activity that involves protected speech.“). Because H.B. 2023 regulates only third-party ballot collection, which is non-expressive conduct, the district court did not err in concluding that H.B. 2023 does not implicate the First Amendment.
Moreover, even if we assumed that H.B. 2023 implicates the First Amendment, we agree with the district court“s conclusion that Arizona“s regulatory interests in preventing voter fraud justifies the minimal burden that H.B. 2023 imposes on associational rights under the Anderson/Burdick test. Looking first at the burden imposed by H.B. 2023, the district court did not clearly err in finding that H.B. 2023 does not impose a severe burden. H.B. 2023 does not prevent individuals and organizations from encouraging others to vote, educating voters, helping voters register, helping voters complete their early ballots, providing transportation to voting sites or mailboxes, or promoting political candidates and parties.
Turning to Arizona“s regulatory interests, we conclude for the reasons discussed supra at 47–48 that the district court did not clearly еrr in finding that Arizona has important regulatory interests in preventing voter fraud and maintaining the integrity of the electoral process. Accordingly, the district court could properly conclude that Arizona“s important regulatory interests are sufficient to justify any minimal burden on associational rights, as discussed supra at 49–51.
In sum, we conclude that ballot collection is not expressive conduct implicating the First Amendment, but even if it were, Arizona has an important regulatory interest justifying the minimal burden that H.B. 2023 imposes on freedom of association. The district court did not err in concluding that the Feldman was unlikely to
IV
Having concluded that the district court did not err in holding that Feldman failed to demonstrate a likelihood of success on the merits, we briefly consider the remaining equitable factors for issuing a preliminary injunction. Because it is not likely that Feldman will suffer a violation of her statutory or constitutional rights, she likely has “failed to establish that irreparable harm will flow from a failure to preliminarily enjoin defendants” actions.” Hale v. Dep“t of Energy, 806 F.2d 910, 918 (9th Cir. 1986).
Even if Feldman had raised serious questions as to the merits of her claims, and also shown a likelihood of irreparable harm, Winter, 555 U.S. at 22, relief would not be warranted because Feldman has not shown that “the balance of hardships tips sharply” in her favor or that an injunction is in the public interest. All. for the Wild Rockies, 632 F.3d at 1135. This case is not one in which “qualified voters might be turned away from the polls.” Purcell, 549 U.S. at 4. Rather, it is one in which voters are precluded from giving their ballots to third-party ballot collectors and organizations must use an alternative means of mobilizing their voters. Cf. Lair, 697 F.3d at 1215 (the existence of “other options for engaging in political speech” militated in favor of staying an injunction against enforcement of a state law restricting one avenue of speech). Indeed, the district court found from the evidence that many voters who entrust their ballots to collectors do so merely for convenience, and we cannot disturb this finding. See Hinkson, 585 F.3d at 1262 (noting our deference to findings that are plausible and supported by the record). The record does not establish that the organizational plaintiffs” need, in light of H.B. 2023, to reallocate resources as part of a reconfigured get-out-the-vote effort constitutes a substantial hardship.
The impact of H.B. 2023 on prospective voters, which the district court found largely to be inconvenience, does not outweigh the hardship on Arizona, which has a compelling interest in the enforcement of its duly enacted laws. See Nken v. Holder, 556 U.S. 418, 436 (2009) (recognizing the public interest in the enforcement of the law); Veasey v. Perry, 769 F.3d at 895 (“When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws.“). As a general matter, Arizona“s regulation of the early voting process advances its interest in preserving ballot secrecy and preventing “undue influence, fraud, ballot tampering, and voter intimidation.” Miller, 179 Ariz. at 180. The interest in preventing fraud is “compelling,” Purcell, 549 U.S. at 4, and for Arizona no less than for Feldman, there are no “do over” elections; “the State cannot run the election over again” with the tools H.B. 2023 provides to combat possible fraud. Veasey v. Perry, 769 F.3d at 896. On this record, then, the balance cannot be said to tip “sharply” in Feldman“s favor. All. for the Wild Rockies, 632 F.3d at 1135.
We turn finally to the public interest, an inquiry that “primarily addresses impact on non-parties,” Bernhardt v. Los Angeles County, 339 F.3d 920, 931 (9th Cir. 2003), but that closely tracks Arizona“s own interests, see Nken, 556 U.S. at 435. Like Arizona itself, its citizens “have a deep interest in fair elections.” Lair, 697 F.3d at 1215. Even in the absence of actual fraud, the prospect of early voting fraud may undermine public confidence in the results of the election. Purcell, 549 U.S. at 4. At the very least, H.B. 2023 assists in exorcizing the specter of illegitimacy that may hang over the electoral process in the minds of some citizens. “Given the deep public interest in honest and fair elections” as well as the “numerous available options” for voters to submit ballots in Arizona consistent with H.B. 2023, Lair, 697 F.3d at 1215, removing H.B. 2023 from the State“s regulatory toolbox in the middle of the voting period may well do more harm to the perceived integrity and legitimacy of the election than good.
Feldman is therefore not only unlikely to prevail on the merits, but, as the district court concluded, her interest in avoiding possible irreparable harm does not outweigh Arizona“s and the public“s mutual interests in the enforcement of H.B. 2023 pending final resolution of this case. In reaching this conclusion, we heed the Supreme Court“s admonition to consider the harms “specific to election cases,” Purcell, 549 U.S. at 4, attendant on enjoining the enforcement of a state“s voting law while it is currently in play, and just weeks before an election.
AFFIRMED.
Feldman v. Sec. of State of Arizona, No. 16-16698
THOMAS, Chief Judge, dissenting:
FILED
OCT 28 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Arizona has criminalized one of the most popular and effective methods by which minority voters cast their ballots. Because this law violates the Constitution and the Voting Rights Act, I must respectfully dissent.
I
Like most states, Arizona allows voters to cast a ballot on election day at a polling place, or to cast an early absentee vote, either in person or by mail.
As the use of early voting has skyrocketed in Arizona, voters have increasingly used friends, organizations, political parties, and campaign workers to transmit their ballots. Some efforts are typical of “get-out-the-vote” campaigns by partisan groups; others are targeted to provide a service to those who cannot get to the polls. Because of geographic and other impediments to voting, voting by ballot collection has become a critical means for minority voters to cast their ballots. A substantial number of rural minority voters live in areas without easy access to mail service. In urban areas, many minority voters are socioeconomically disadvantaged, meaning that they may lack reliable mail service and have to rely on public transportation to get to polling places.
Nonetheless, Arizona enacted the law at issue, House Bill 2023, codified at
We review the denial of a preliminary injunction for abuse of discretion. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). A
district court abuses its discretion if its analysis is premised on an inaccurate view of the law. Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th Cir. 2014). In such instances, we review de novo the legal premises underlying the preliminary injunction. Id.1
II
The district court erred in its analysis of the plaintiffs’
Under Burdick‘s balancing and means-end fit framework, strict scrutiny is appropriate when
First orFourteenth Amendment rights “are subjected to ‘severe’ restrictions.” Id. (quoting Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)). “But when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon theFirst andFourteenth Amendment rights of voters, ‘the State‘s important regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564).
Pub. Integrity All., 2016 WL 4578366, at *3.
However, rather than reviewing H. B. 2023 under a balancing and means-end fit analysis, the district court conducted a rational basis review, committing legal error.2
The burden of the law on Arizona minority voters is substantial and occurs in both urban and rural areas of the state. The uncontradicted evidence presented to the district court showed that a substantial number of minority voters used ballot collection as their means of voting. As Maricopa Board of Supervisors Steve Gallardo testified: “ballot collectors are used in large part by Latino and Native American groups and [ballot collecting] has come to be critical in enabling voters in those communities to exercise their fundamental right to vote.”
The record demonstrated that, in many rural areas with a high proportion of minority voters, home mail delivery was not available, and it was extremely difficult to travel to a post office. No one contested the fact that the rural communities of Somerton and San Luis, which are comprised of 95.9% and 98.7% Hispanic voters, respectively, were without home mail delivery and reliable transportation. As the representative for that district testified, “[b]ecause many of these voters are elderly and have mobility challenges, it is a common practice in this area to have one neighbor pick up and drop off mail for others on their street as a neighborly service.” The representative noted that there is only one post office, which is located across a highway crowded with cars waiting to cross the border, and is virtually inaccessible by foot.
Another example of the impact of the law on minоrity voters is the Tohono O‘odham Indian Nation. The Tohono O‘odham reservation constitutes over 2.8 million acres in the Sonoran desert. It is an area larger than Rhode Island and Delaware, and approximates the size of Connecticut. It has about 14,000 registered voters. It does not have home mail delivery. It has one post office, which is over 40 miles away from many residents. The evidence in this case shows that restrictions on ballot collection affect the Tohono O‘odham tribe significantly. No one contested the fact that the members of the Tohono O‘odham Indian Nation have limited access to a postal service and no home mail delivery.
Similarly, no one disputed that members of the Cocopah Indian Tribe do not have home mail delivery or easy access to a post office. The Cocopah Reservation is located along the lower Colorado River, south of Yuma, Arizona. The Cocopah Reservation comprises approximately 6,500 acres, with approximately 1,000 tribal members who live and work on or near the Reservation.
As to urban areas, record evidence demonstrated that the burden of the law affected minority voters the most because of socioeconomic factors. Minority voters in urban areas were more likely to be economically disadvantaged. The record showed that many minority urban voters lived in places with insecure mail delivery; that many minority urban voters were dependent
Martin Quezada, State Senator for Arizona‘s Twenty-Ninth Senate District testified that:
I represent approximately 213,000 constituents, nearly 80% of which are ethnic minorities. In particular, Hispanic citizens comprise 67% of the population of my district, the highest percentage of any district in the state of Arizona. My district is a working-class community, and many of my constituents depend on public transportation. [...] Many of my constituents were severely burdened by the long lines and lack of polling locations in the 2016 presidential preference election. My entire district only had one vote center, in Maryvale, to service the nearly 70,000 registerеd voters . . . .
The President of a nonprofit organization comprised of Latino citizens and community leaders testified that many minorities required assistance in making sure that they were following the proper voting procedure, and in low income areas they were concerned about the security of their mailboxes.
Further complicating voting in Arizona‘s urban areas is that there are not only few places to vote, but that the polling locations change frequently. Indeed, because the City of Phoenix elections are run independently by the City, a voter might have to go to two different polling places to cast ballots on election day. According to the Executive Director of a nonprofit organization working primarily in low-income African-American and Latino neighborhoods, this confusion significantly burdened those communities because many minorities had difficulty navigating the voting process, especially those Spanish-speaking voters who were not also fluent in English. The record also showed that election administrators were prone to make errors with Spanish-language materials. Those voters encounter significant hurdles at polling places. Thus, the opportunity for early voting is especially important for those citizens.
The district court and the State dismiss the burdens imposed on minority voters seeking to vote early as attacks on a process that provides only a “more convenient” means of voting. However, when 80% of the electorate uses early absentee voting as the method by which they cast their ballots, the method has transcended convenience and has become instead a practical necessity. Thus, when severe burdens are placed on this form of voting, it has a significant impact on elections and the right to vote.
Against this burden, the state‘s justification for the law was weak. The state identified its interest as preventing voter fraud. However, the sponsors of the legislation could not identify a single example of voter fraud caused by ballot collection. Not one. Nor is there a single example in the record of this case. The primary proponent of the legislation admitted there were no examples of such fraud, but that the legislation was based on the speculative theory that fraud could occur. A study by the Arizona Republic found that, out of millions of ballots cast from 2005 to 2013, there were only 34 cases of fraud prosecution. All involved voting by felons or non-citizens. None involved any allegation of fraud in ballot collection. And none of the cases resulted in a conviction. A study by the National Republican Lawyers Association, which was dedicated to finding voter fraud and investigated evidence of potential fraud between 2000 and 2011, uncovered no example of fraud resulting from
Thus, when one balances the serious burdens placed on minorities by the law against the extremely weak justification offered by the state, one can only conclude under the Anderson-Burdick analysis that the plaintiffs have established a likelihood of success on the merits of their
III
The district court also erred in denying the motion for a preliminary injunction based on the
The central purpose of the Act was “[t]o enforce the fifteenth amendment to the Constitution of the United States.” Chisom v. Roemer, 501 U.S. 380, 383 (1991) (quoting Pub.L. 89-110, 79 Stat. 437,
At issue in this case is § 2 of the Act, which is “a restatement of the
To succeed on a § 2 claim, a plaintiff must show (1) that “the challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice” and (2) “that burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014) (internal quotations omitted); see also Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016).
The district court made a number of legal errors in its analysis of the § 2 claims, warranting reversal.
A
The district court erred in holding, as a matter of law, that § 2 requires proof of the disparate impact of a law by “quantitative or statistical evidence comparing the proportion of minority versus white voters who rely on others to collect their early ballots.” As the State concedes, there is no case law supporting this requirement; the district court relied only on cases it thought “strongly suggested” it.
Although quantitative or statistical measures of comparing minority and white voting patterns certainly may provide important analytic evidence, the district court erred in concluding that they were the exclusive means of proof. Indeed, the district court‘s conclusion is belied by the words of the
Even if we leave aside the irreconcilable conflict between the district court‘s proposed rule and the requirements of the governing statute, the district‘s approach is still fatally flawed.
First, quantitative measurement of the effect of a rule on the voting behavior of different demographic populations must necessarily occur after the election. One cannot statistically test the real world effect of a rule in the abstract; it can only be measured by actual voting data. In other words, imposition of the district court‘s proposed rule would mean that there could never be a successful pre-election challenge of the burdens placed on minority voting opportunity because no data will have been generated or collected. The analysis could only occur after the harm had been inflicted. That result cannot be squared with the broad remedial purposes of the
Second, the relevant data is not available in Arizona. The State concedes that it does not collect the necessary data, and asserts that it should not bear that burden in the absence of a law that requires it to do so. The State suggests that plaintiffs should use data from those organizations who collect ballots. Of course, that action would now be a felony. But leaving that aside, there would be no practical way for the plaintiffs to collect comparative data by that method because it is highly unlikely they could force competing organizational groups to collect and supply the data. And such a method would not likely yield true comparative results. At best, it would show
Third, the district court acknowledged the difficulty of obtaining the data because “election and other public records often do not include racial or ethnic data,” and noted that “[t]here is no getting around this problem.” Nonetheless, the court held that the statute still required a threshold statistical showing, even though collecting such evidence was likely impossible. That was not the intent of the
Fourth, in its examination of the plaintiffs’ evidence, the district court erred in its comparative analysis. It faulted the plaintiffs for not showing comparative data from other rural white-centric areas. But that is not the examination required by the
And even if we were to take the district court‘s analysis at face value, it fails in consideration of the evidence in this case. The district court‘s conclusion is at odds with the evidence showing the law disproportionately burdens minorities. I have previously described the situation faced by the Tohono O‘odham Nation, situated on 2.8 million acres, with limited access to a post office and no home mail delivery. Everyone concedes that there is no white population analogue. There are no white reservations in Arizona. There is no comparably sized rural area that encompasses a white-majority population. The record evidence was plain and uncontroverted: H.B. 2023 places a disproportionate burden on the voting opportunities of members of the Tohono O‘odham tribe in comparison with the population of white voters.
The evidence provided by the plaintiffs showed a similar pattern in urban areas. Minority voters encountered significant burdens in exercising their right to vote. The reduced number of polling places meant that voters had to wait hours in line to cast ballots. Low income voters had difficulty getting to the polls because of their dependence on public transportation. Voters who were not fluent in English had difficulty determining where to vote. Statistical
In sum, the district court committed legal error by requiring the plaintiffs to show proof of the disparate impact of the law by “quantitative or statistical evidence comparing the proportion of minority versus whitе voters who rely on others to collect their early ballots.” That formulation is at odds with the governing statute, which requires analysis by “totality of the circumstances” of whether members of the affected minority class “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
B
The district court also erred as a matter of law in its assessment of the plaintiffs’ burden of proof. “[T]he burden of proof at the preliminary injunction phase tracks the burden of proof at trial . . . .” Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011). In a voting rights case, the plaintiff bears the burden of proof at trial and must show a violation by a preponderance of the evidence. Bartlett v. Strickland, 556 U.S. 1, 19-20 (2009). Thus, the parties seeking a preliminary injunction in this case must show they are likely to prevail on the merits; if the plaintiffs satisfy that burden, then the opposing parties bear the burden of rejoinder. Thalheimer, 645 F.3d at 1116.
Here, the district court rejected plaintiffs’ tendered evidence because it was not “compelling.” At the preliminary injunction stage, the plaintiff is not required to present “compelling” evidence, but only to establish a likelihood of success by a preponderance of the evidence. The district court also rejected the tendered evidence as “anecdotal,” but the Supreme Court has considered and credited just such evidence. At the preliminary injunction stage, plaintiffs were obligated to show a likelihood of success in showing that “members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Much of the evidence tendered by the plaintiffs as to this burden was not controverted. As I have noted, no one contested the fact that the rural communities of Somerton and San Luis, which are comprised of 95.9% and 98.7% Hispanic voters, respectively, were without home mail delivery and reliable transportation. No one contested the fact that the members of the Tohono O‘odham Indian Nation do not have home mail delivery. No one disputed that members of the Cocopah Indian Nation do not have home mail delivery. The plaintiffs submitted voluminous affidavits showing the burden that the restriction on ballot collection would impose on minorities. The State did not contest the affidavits, but simply dismissed the evidence as “anecdotal.” Thus, much of the evidence tendered by the plaintiffs as to the disproportionate burden on minority voters was either completely undisputed or uncontested.
However, once the plaintiffs had established the burden on minority voters, the district court did not place the burden of rejoinder on the State. Rather, it categorically rejected evidence based on personal knowledge as “anecdotal,” and held that the plaintiffs were required to show that rural white voters were not similarly burdened. In other words, once the plaintiffs had established the burden on minority voters, the district court imposed a higher standard of proof, rather than shifting the burden of rejoinder to the State. The record
C
The district court did not reach the second prong of the § 2 analysis, namely, whether the burden was in part caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class. Nevertheless, the plaintiffs established a likelihood of success on the second prong.
As to the second part of the analysis, the Supreme Court has identified several factors to be taken into consideration, consistent with the legislative history of the
- the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
- the extent to which voting in the elections of the state or political subdivision is racially polarized;
- the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
- if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
- the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
- whether political campaigns have been characterized by overt or subtle racial appeals; and
- the extent to which members of the minority group have been elected to public office in the jurisdiction.
Gingles, 478 U.S. at 37. In addition, the Court added that in some cases, there was probative value in inquiring “whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group” and “whether the policy underlying the state or political subdivision‘s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.” Id. (citing S. Rep., at 28-29, U.S.Code Cong. & Admin. News 1982, pp. 206-207).
As to the first factor, the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process, Arizona has had a long history of imposing burdens on minority voters. In 1912, shortly after gaining statehood, Arizona imposed a literacy test for voting. In Cochise and Pima Counties, the denial of the right to vote meant that nearly half the precincts lacked enough voters to justify holding primary elections in 1912. From 1912 to the early 1960s, election registrars applied the literacy test to reduce the ability of African Americans, Native Americans, and Hispanics to register to vote. In an action filed against Arizona to enforce the
The passage of the
Native Americans in Arizona especially suffered from voting restrictions. Although Native Americans were U.S. citizens, the Arizona Supreme Court held in 1928 that they could not vote because they were under federal guardianship. Porter v. Hall, 271 P. 411, 419 (Ariz. 1928). Even after that ban was overruled in 1948 in Harrison v. Laveen, 196 P.2d 456 (Ariz. 1948), Native Americans faced significant obstacles to voting. See generally, Patty Ferguson-Bohnee, The History of Indian Voting Rights in Arizona: Overcoming Decades of Voter Suppression, 47 Ariz. St. L. J. 1099, 1112 (2015).
Because of its long history of imposing burdens on minority voting, Arizona became one of nine states subject to the pre-clearance requirements of the
As to the second factor, the extent to which voting in the elections of the state or political subdivision is racially polarized, Arizona has had a history of racially polarized voting. The plaintiffs provided expert testimony detailing the history of polarized voting. Statistical analysis showed the sharp polarization between white and non-white voters.
For the reasons described in the discussion of factor one, the plaintiffs demonstrated a likelihood of success as to factor three, namely, the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group.
Because the voting access issues affect the right to vote for a candidate, the fourth factor concerning the candidate slating process is not relevant.
The plaintiffs also provided substantial evidence as to the sixth factor, namely, whether political campaigns have been characterized by overt or subtle racial appeals.
Finally, the plaintiffs provided evidence supporting the seventh Gingles factor, namely, the extent to which members of the minority group have been elected to public office in the jurisdiction. As of January 2016, Hispanics constituted over 30% of the population, but held only 19% of the seats in the Arizona legislature. African-Americans made up 4.7% of the population, but held 1% of the legislative seats. Native Americans fared slightly better, constituting 5.3% of the population and holding 4.4% of the legislative seats.
But the Gingles factors are not the end of the story. We are obligated to look to the “totality of the circumstances.”
D
The plaintiffs established a likelihood of success on the § 2
IV
The district court should have granted the motion for a preliminary injunction. The district court made a number of legal errors. The plaintiffs established that the anti-ballot-collection law significantly burdens the voting rights of minorities, particularly Hispanic and Native American voters. The State‘s justification of preventing voter fraud was not, and is not, supportable. One of the most popular and effective methods of minority voting is now a crime. H. B. 2023 violates the
There are many burdens and challenges faced in Arizona by Native Americans, Hispanics, African-Americans, the poor, and the infirm who do not have caregivers
I respectfully dissent.
Notes
- the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
- the extent to which voting in the elections of the state or political subdivision is racially polarized;
- the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
- if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
- the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
- whether political campaigns have been characterized by overt or subtle racial appeals;
- the extent to which members of the minority group have been elected to public office in the jurisdiction.
- whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.
- whether the policy underlying the state or political subdivision‘s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.