Lead Opinion
Dissent by Chief Judge THOMAS
OPINION
In April 2016, Leslie Feldman and other appellants
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,
A
Arizona law permits “[a]ny qualified elector” to “vote by early ballot.” Ariz. Rev. Stat. § 16-541(A).
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 Ariz. Rev. Stat. § 16-542(D)). As the Supreme Court of Arizona explained, regulations on the distribution of absentee and early ballots advance Arizona’s constitutional interest in secret voting, see Ariz. Const, art. VII, § 1, “by setting forth procedural safeguards to prevent undue influence, fraud, ballot tampering, and voter intimidation.” Miller v. Picacho Elementary Sch. Dist. No. 33,
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 Unit-' ed 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:
1. 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.
2. A family member, household member or caregiver of the voter. For the purposes of this paragraph:
(a) “Caregiver” means a person 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.
(b) “Collects” means to gain possession or control of an early ballot.
(c) “Family member” means a person who is related to the voter by blood, marriage, adoption or legal guardianship.
(d) “Household member” means a person who resides at the same residence as thе voter.
Ariz. Rev. Stat. § 16-1005(H)-(I). Thus, this amendment to section 16-1005 makes it a felony for third parties to collect early ballots from voters unless the collector falls into one of many exceptions. See id. The prohibition does not apply to election officials acting as such, mail carriers acting as such, any family members, any persons who reside at the same residence as the voter, or caregivers, defined as any person who provides medical or health care assistance to voters in a' range of adult residences and facilities. Id. § 16-1005(I)(2). H.B. 2023 does not provide that ballots collected in violation of this statute are disqualified or disregarded in the final election tally.
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 Feld-man, H.B. 2023’s limitation on third-party
B
Feldman sued Arizona
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 Feld-man 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 réviewed the totality of the eviden-tiary 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 Feld-man’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.,
Feldman filed an emergency motion with this court for an injunction pending
II
We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1). On an appeal from the denial of a preliminary injunction, we do not review the underlying merits of the claims. Sw. Voter Registration Educ. Project v. Shelley,
Our abuse-of-discretion analysis proceeds in twq steps. See Gilman v. Schwarzenegger,
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,
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,
Ill
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 Voting Rights Act of 1965 to improve enforcement of the Fifteenth Amendment.
“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,
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,
As amended in the 1982 amendments, Section 2 of the Voting Rights Act provides:
§ 10301. Denial or abridgement of right to voté 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*1067 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 10803(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.
52 U.S.C. § 10301.
The Supreme Court interpreted this language in Thornburg v. Gingles,
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.
[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.
League of Women Voters of N.C. v. North Carolina,
We agree with this two-part framework, which is' consistent with Supreme Court precedent, our own precedent, and with the text of § 2. Under the first prong, a plaintiff must show that the challenged voting practice results in members of a protected minority group having less opportunity than other members of the electorate to participate in the political process. Gonzalez v. Arizona,
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,
The district court’s legal determinations are reviewed de novo, Gonzalez,
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. 2023⅛ 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,
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,
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 pri- or 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’od-ham Nation compared to non-minorities who also live in rural communities.
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.
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. Feld-man’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,
We rejected a similar argument in Gonzalez. As in this case, the plaintiff in Gonr zalez 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.
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 participate in the political process as compared to non-minorities.
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,
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,
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,
“[T]he severity of the burden the election law imposes on the plaintiffs rights dictates the level of scrutiny applied by the court.” Ariz. Libertarian Party v. Reagan,
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,
Finally, the Supreme Court has warned that facial challenges “are best when infrequent,” Sabri v. United States,
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,
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,
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.
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.,
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,
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,
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,
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.
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,
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.,
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. Ariz. Rev. Stat. § 16-1005; see, e.g., Timmons,
Turning to Arizona’s regulatory interests, we conclude for the reasons discussed supra at 1081-82 that the-district court did not clearly err 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 assodational rights, as discussed supra at 1082-83.
In sum, we conclude that ballоt 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,
Even if Feldman had raised serious questions as to the merits of her claims, and also shown a likelihood of irreparable harm, Winter,
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,
We turn finally to the public interest, an inquiry that “primarily addresses impact on non-parties,” Bernhardt v. Los Angeles County,
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 Ú.S. at 4,
AFFIRMED.
Notes
. The appellants here (plaintiffs below) are Leslie Feldman, Luz Magallanes, Mercedez Hymes, Julio Morera, and Cleo Ovalle, registered Democratic voters in Maricopa County, Arizona; Peterson Zah, former Chairman and First President of the Navajo Nation and registered voter in Apache County, Arizona; the Democratic National Committee; the DSCC, aka Democratic Senatorial Campaign Committee; the Arizona Democratic Party; a committee supporting the election of Democratic United States Representative Ann Kirkpatrick to U.S. Senate; and Hillary for America, a committee supporting the election of Hillary Clinton as President of the United States. The intervenor-plaintif/appellant is Bernie 2016, Inc., a committee supporting the election of Bernie Sanders as President of the United States. For convenience, we refer to the appellants as "Feldman.”
. Because H.B. 2023 is a state law, the challenge technically arises under the Fourteenth Amendment, which applies the First Amendment's protections against States and municipalities. See City of Ladue v. Gilleo,
. A "qualified elector” is any person at least eighteen years of age on or before the date of the election "who is properly registered to vote." Ariz. Rev, Stat. § 16—121(A).
. The appellees here (defendants below) are the Arizona Secretary of State’s Office; Arizona Secretary of State Michele Reagan in her official capacity; the Maricopa County Board of Supervisors; members of the Mari-copa County Board of Supervisors Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and Steve Gallardo in their official capacities; the Maricopa County Recorder and Elections Department; Maricopa County Recorder Helen Purcell and Maricopa County Elections Director Karen Osbourne in their official capacities; and Arizona Attorney General Mark Brnovich in his official capacity. The intervenor-defendanl/appellee is the Arizona Republican Party. For convenience, we refer to the appellees as "Arizona,” where appropriate, and otherwise use their individual names. .
. In addition to this appeal, Feldman appealed another of the district court's orders denying a separate motion to enjoin preliminarily other election practices challenged in the complaint. That appeal has similarly been expedited and will be the subject of a separate disposition. See Feldman v. Arizona Sec’y of State’s Office, No. 16-16865,
. The dissent suggests that the district court's factual findings are entitled to less weight here because "the district court did not conduct any evidentiary hearings to resolve disputed factual issues” and "the parties' submissions were by affidavit.” See Dissent at 1087 n.l. Our review of factual findings, however, does not change based on the nature of the evidence. “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous.” Fed. R. Civ. P. 52(a)(6); see also Anderson v. City of Bessemer City,
. Feldman does not raise the claim that H.B. 2023 is invalid because it was intended to . suppress votes based on partisan affiliation or viewpoint, i.e., a theory of prohibited partisan fencing.
. The Fifteenth Amendment provides that "[t]he right of citizens of the United States to ■ vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and authorizes Congress to enforce the provision “by appropriate legislation.” U.S. Const, amend. XV.
. As explained in Gingles, the relevant factors include:
1.' 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;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, pr other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the. minority group have been denied access to that process;
5. 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;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members оf the minority group have been elected to public office in the jurisdiction.
Additional factors that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are:
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.
. Vote dilution can occur, for instance, where a practice has the effect of reducing or nullifying "minority -voters’ ability, as a group, to elect the candidate of their choice," Shaw, 509 U.S. at 641,
. The dissent does not dispute that under Gonzalez, the ultimate question is one of fact. Dissent at 1087 n.l. Yet, the dissent argues that the district court’s assessment of the likelihood of success on the merits of this ultimate question should be reviewed de novo because we are at the preliminary injunction stage, and the question is a mixed question of law and fact. See id. We disagree. Our conclusion that the clear error standard applies in reviewing a trial court’s determination at the merits stage is equally applicable at the preliminary injunction stage. See, e.g., Pom Wonderful LLC v. Hubbard,
. Feldman contends that her failure to adduce evidence that ballot collection restrictions place a heavier burden on minorities than non-minorities should be excused because Arizona failed to track how early ballots hre returned. As plaintiff, however, Feldman has the obligation of carrying her burden of proof. See Gingles,
. The dissent appears to conflate the district court’s rule that quantitative data is necessary to establish the first prong of a § 2 violation with a rule that only actual post-election voting data can establish a § 2 violation. Dissent at 16. While the Third Circuit has suggested that plaintiffs must prove that a challenged practice has an impact on minority voter turnout, see Ortiz v. City of Phila. Office of City Comm’rs Voter Registration Div.,
. Feldman relies on two out-of-circuit vote dilution cases to support her argument that statistical evidence is not required in the application of the factors laid out in Gingles. See, e.g., Sanchez v. Colorado,
. For instance, Declarant Randy Parraz stated that his organization, Citizens for a Better Arizona, "focuse[s] its get-out-the-vote efforts on helping low-income Latino voters.” Ian Danley’s declaration states that his non-partisan organization, One Arizona, typically engages with voters in neighborhoods that are heavily Latino. Declarants Joseph Larios and Ken Chapman work for the Center for Neighborhood Leadership, which focuses its efforts in "low-income African American and Latino neighborhoods.” The Arizona Democratic lawmakers who provided declarations represent constituents who are predominately ethnic minorities. For example, Representative Ruben Gallego "represent^] approximately 763,000 constituents, nearly 80% of whom are ethnic minorities." State Senator Martin Quezada "represent[s] approximately 213,000 constituents, nearly 80% of which are ethnic minorities.” Kate Gallego, the Vice Mayor of the City of Phoenix, represents a district that "is heavily Latino and has the highest percentage—15%—of African Americans in any district in Phoenix.”
. The dissent emphasizes that the evidence regarding the lack of mail delivery service to the Tohono O’odham Nation and the rural communities of Somerton and San Luis was not contested. Dissent at 1094. But the issue is not whether minority voters have limited access to mail delivery service; rather, the issue is whether due to H.B. 2023, minorities "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” 52 U.S.C. § 10301(b) (emphasis added). Without evidence regarding non-minorities, the comparison required by § 2 cannot be made.
. At the time of S.B. 1412’s enactment, Arizona was still subject to Section 5 of the Voting Rights Act, which required Arizona to receive preclearance from the Department of Justice оr a federal court convened in the United States District Court for the District of Columbia before implementing a new voting standard, practice, or procedure. 52 U.S.C. § 10304. The Arizona Attorney General submitted S.B. 1412 to the Department of Justice for preclearance. The Department of Justice requested additional information about S.B. 1412’s ballot collection restrictions, but did not complete its evaluation of S.B. 1412 because the Arizona legislature repealed the ballot-collection measure as a part of an omnibus bill in 2012.
. The dissent argues that once plaintiffs have established a burden on minority voters, a "burden of rejoinder” should be placed on the state. Dissent at 1094. But § 2 requires more than merely showing a burden on minorities. It requires plaintiffs to establish that minorities "have less opportunity.than other mem- ■ bers. of the electorate to participate in the ■political process.” 52 U.S.C. § 10301. We : have held that it is not enough for the plaintiff to make "a bare statistical showing of disproportionate impact on a racial minority”; rather, "Section 2 plaintiffs must show a causal connection between the challenged voting practice and [a] prohibited discriminatory result.” Salt River,
. We likewise do not consider the nine factors set forth in Gingles,
. The dissent contends that "neither the plaintiffs nor the defendants categorize the challenge to H.B. 2023 as a facial challenge." Dissent at 1090 n.3. However, "[t]he label is not what matters.” John Doe No. 1 v. Reed,
. The dissent argues that because "80% of the electorate uses early absentee voting,” it "has transcended convenience and has become instead a practical necessity." Dissent at 1089. In doing so, the dissent elides" the distinction between early absentee voting in general and early absentee voting through third-party ballot collection, the only practice restricted by H.B. 2023. Feldman did not provide "concrete evidence,’" Crawford,
. The dissent argues that "the state's justification for the law was weak” because it "could not identify a single example of voter fraud caused by ballot collection.” Dissent at 1089. But the record does contain evidence of improprieties, such as ballot collectors impersonating elections officials. Moreover, Arizona's interest is not simply in preventing fraud, but also in promoting public confidence in the electoral system, and the record contains evidence from which the district court could properly conclude, as Feldman’s expert conceded, that absentee voting is particularly conducive to fraud. "[0]ccasional examples” of fraud—as documented in the Arizona Republic article cited by the dissent— "demonstrate that ... the risk of voter fraud [is] real,” Crawford,
Dissenting Opinion
dissenting:
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. A.R.S. § 16-541. Early voting has become increasingly popular in Arizona, as evidenced by the fact that 81% of ballots cast in the last Presidential election were cast by early voting, a 12% increase from the 2012 election. An important reason for the increase in early voting is that Arizona has substantially reduced the number of polling places, resulting in extraordinarily long lines, with voters waiting many hours to cast their ballots. In one urban area, there is one voting center for nearly 70,000 registered voters. In some precincts in Maricopa County, voters waited for four hours to cast their ballots in the Presidential Preference Primary election earlier this year. In other precincts, the wait was up to six hours. Compounding the problem is that, in Maricopa County in particular, polling places change with each election, and the County is using a different polling place system for the general election than it did in the Presidential Preference election earlier this year.
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 A.R.S. § 16-1005 (H)-(I), which imposes felony criminal sanctions for non-household members or caregivers who collect early ballots from others. Plaintiffs filed this lawsuit challenging the law under the Voting Rights Act of 1965 and the First and Four
We review the denial of a preliminary injunction for abuse of discretion. All. for the Wild Rockies v. Cottrell,
II
The district court erred in its analysis of the plaintiffs’ Fourteenth Amendment claims. First, it erroneously employed a rational basis review standard, when the appropriate standard was a “balancing and means-end fit analysis.” Pub. Integrity All. v. City of Tucson,
Under Burdick’s balancing, and means-end fit framework, strict scrutiny is appropriate when First or Fourteenth 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 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 ,103 S.Ct. 1564 ).
Pub. Integrity All.,
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.
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 Mari-copa 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, “[bjecause 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 minority voters is the Tohono O’od-ham 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’od-ham 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 bеcause 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 de
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 registered 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 seéking 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 ba,sed 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 Fourteenth Amendment claim.
III
The district court also erred in denying the motion for a preliminary injunction based on the Voting Rights Act claims. The Voting Rights Act of 1965 “was designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century.” State of S.C. v. Katzenbach,
The central purpose of the Act was “[t]o enforce the fifteenth amendment to the Constitution of the United States.” Chisom v. Roemer,
At issue in this case is § 2 of the Act, which is “a restatement of the Fifteenth Amendment.” Roemer,
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 opрortunity 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,
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 Voting Rights Act itself, which provides that a violation of § 2 is “based oyi the totality of the circumstances.” 52 U.S.C. § 10301(b) (emphasis added). The statute requires evidence that 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.” Id. (emphasis added). The statutory criterion is incompatible with the district court’s restriction of proof to quantitative denial of actual minority voting compared with white voting. 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 Voting Rights Act. The Fifth Circuit, in rejecting an approach similar to the district court’s, acknowledged this problem, observing that requiring such proof would “presentí ] problems for pre-election challenges ... when no such data is yet available.” Veasey,
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 “[tjhere 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 Voting Rights Act, and it is just such a circumstance that requires assessment of the “totality of the circumstances.”
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 Voting Rights Act. Section 2 examines whether “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.” Veasey,
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 cоncedes 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 uncon-troverted: 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. Sta
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 white ■ 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.” 52 U.S.C. § 10301(b).
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,
Here, the district court rejected plaintiffs’ tendered evidence because it was not “compelling.” At the preliminary injunction stagе, 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 rec
C
The district court did not rеach 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 Voting Rights Act, namely:
(1) 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;
(2) the extent to which voting in the elections of the state or political subdivision is racially polarized;
(3) 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;
(4) if there is a candidate slating process, whether the members of the minority group have been denied access'to that process;
(5) 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 then-ability to participate effectively in the political process;
(6) whether political campaigns have been characterized by overt or subtle racial appeals; and
(7) the extent to which members of the minority group have been elected to public office in the jurisdiction.
Gingles,
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 Voting Rights Act, the United States Justice Department estimated that 73,000 peo-
The passage of the Voting Rights Act in 1965 caused the suspension of the literacy test in Arizona, but the statute remained in effect until it was repealed in 1972, after Congress banned its use in 1970 through an amendment to the Voting Rights Act. Arizona subsequently unsuccessfully challenged the Congressional ban on literacy tests. Oregon v. Mitchell,
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,
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 Voting Rights Act after it was amended in 1975 to protect language minorities. 40 Fed. Reg. 43746. Under the pre-clearance provision, Arizona was required to obtain the approval of the United States Department of Justice ■ before implementing any law affecting the voting rights and representations of minorities. Since 1982, the Department of Justice has vetoed four statewide redistricting plans proposed by Arizona that appeared to discriminate against minorities. When Arizona was subject to the pre-clearance requirements of § 5, a bill precluding or criminalizing ballot collection passed the Arizona legislature, but was ultimately repealed due to concerns about Justice Department approval. In 2013, the Arizona legislature passed a measure banning partisan ballot collection, the violation of which was a misdemeanor. It was repealed after its repeal was placed on the ballot by referendum. The plaintiffs established a likelihood of success as to the first factor.
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 óf racially polarized voting. The plaintiffs provided expert testimony detailing the history of polarized voting. Statistical analysis showed the sharp polarization between white and nonwhite 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.” 52 U.S.C. § 10301(b). In this election, in-person voting opportunities are significantly hindered by lack of polling places and significant changes in polling places, all of which have caused extraordinarily long lines for voting in person, up to six hours in some locations. This hindrance to in-person voting falls most heavily on minorities, So, the cited “opportunities” for .alternate voting are illusory. H.B. 2023 has now imposed additional significant burdens on minorities as to their ability to cast their ballots early through the popular means of ballot collection. The totality of the circumstances of this election, coupled with the historic discrimination in Arizona’s electoral politics are sufficient to satisfy the second § 2 requirement. In sum, the plaintiffs established a likelihood’ of success in proving the Gingles factors at stage two of the § 2 analysis.
D
The plaintiffs established a likelihood of success on - the § 2 Voting Rights Act claim. They established that the criminalization of ballot collection meant that minority voters had less opportunity than other members of the electorate to elect representatives of their choice, and that the burden in part was caused by or linked to social and historical conditions that have or currently produce discrimination against minorities,
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 Constitution and the Voting Rights Act.
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.
. The majority believes the district court’s findings of fact are reviewed by this Court for clear error because the district court has superior fact-finding capabilities. Maj. Op. at 1071. The majority also believes a district court’s answer to the ultimate question— whether there was a § 2 violation—-is a finding of fact entitled to deference. The majority cites Gonzales for that proposition. However, the district court did not conduct any eviden-tiary hearings to resolve disputed factual issues, and most of the record is- undisputed, and the parties’ submissions were by affidavit. Furthermore, the district court here did not determine whether there was a § 2 violation because, unlike in Gonzales, we are not yet at the merits stage of the inquiry. This is an appeal of a denial of a preliminary injunction, so we are reviewing the district court’s determination that the plaintiffs are unlikely to succeed on the merits of their claims: In my view, the plaintiffs are likely to succeed on the merits and the district court reached the opposite conclusion because it made errors of law. Therefore, review is de novo as to those questions. Pom Wonderful LLC,
. The majority concludes that because Arizona’s regulatory interests are sufficient to justify the "minimal burden” imposed by H.B. 2023, "the district court was not required to conduct a' means-end fit analysis here.” Maj. Op', at 1082. That is an erroneous interpretation of Supreme Court and our precedent. “The Supreme Court delineated the appropriate standard of review for laws regulating the right to vote in Burdick v. Takushi[:]" it is a "balancing and means-end fit framework.” Pub. Integrity All.,
. The majority asserts that plаintiffs in this case are bringing a facial challenge to H.B. 2023 and they therefore bear a “heavy burden of persuasion” because such challenges "raise the risk of premature interpretation of statutes.” Maj. Op. at 1079 (internal quotations omitted). It is worth noting that neither the plaintiffs nor the defendants categorize the challenge to H.B. 2023 as a facial challenge; only the majority opinion does so. It is also worth noting that securing a court’s interpretation of the effects of H.B. 2023 before the law is enforced is the point of seeking a preliminary injunction. But for my part, I think this is a distinction without a difference because "[t]he underlying constitutional standard [in an as applied challenge] ... is no different th[a]n in a facial challenge.” Legal Aid Servs. of Or. v. Legal Servs. Corp.,
. Plaintiffs assert an additional Constitutional claim under the First Amendment. In my view, the district court erred in concluding that H.B. 2023 did not burden their First Amendment associational rights. However, in my view, the district court did not abuse its discretion in denying a preliminary injunction based on this independent claim.
. The majority opines that "[w]hile § 2 itself does not require quantitative evidence, past cases suggest that such evidence is typically necessary to establish a disparate impact.” Maj. Op. at 1073. The majority also notes that plaintiffs' briefs rely on vote dilution cases but not vote denial cases in arguing that statistical evidence is not required to establish a § 2 violation. Maj. Op. at 1073 fn. 14. I perceive no reason why the type of § 2 case on which plaintiffs rely is of consequence to their argument about what § 2 itself requires. Likely plaintiffs could not rely on a vote denial case for the stated proposition because of the practical reality that in a vote denial case, quantitative evidence of the effect of a rule on voting behavior is only available after an election has occurred, at which point the remedial purpose of the Voting Rights Act is no longer served. Plaintiffs in vote dilution cases, in contrast, can often gather and analyze quantitative data before an election. See, e.g., Thornburg v. Gingles,