Lead Opinion
Dissent by Judge O’SCANNLAIN;
Dissent by Judge BYBEE;
Dissent by Judge N.R. SMITH
ORDER
We granted, in a prior order, rehearing en bane in this appeal. In a separate order, filed concurrently with this opinion, -we scheduled en banc oral argument for the week of January 17, 2017, in San Francisco, California. The question, then, is whether to grant plaintiffs’ motion for an injunction pending appeal. A motions panel denied the motion in the first instance, but we may reconsider that decision as an en banc court. For the reasons stated herein, we grant the motion.
The standard for evaluating an injunction pending appeal is similar to that employed by district courts in déciding whether to grant a preliminary injunction. Lopez v. Heckler,
However, there are additional considerations when we consider granting an injunction pending appeal in an election case. When faced with an appeal in cases in which an election' is pending, federal courts are “required to weigh, in addition to the harms attendant upon issuance or
At the outset, it is important to remember that the Supreme Court in Purcell did not set forth a per se prohibition against enjoining voting laws on the eve of an election.
In this case, the factors that animated the Supreme Court’s concern in Purcell are not present. First, the injunction does hot affect the state’s election processes or machinery. The injunction pending appeal sought by plaintiffs would not change the electoral process, it simply would enjoin enforcement of a legislative act that would criminalize the collection, by persons other than 'the voter, of legitimately cast ballots.
H.B. 2023 amended Arizona’s election statutes to provide that “A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony.” Ariz. Rev. Stat. § 16-1005(H). Enjoining enforcement of H.B. 2023 will not have any effect on voters themselves, on the conduct of election officials at the polls, or on the counting of ballots. Under H.B. 2023, as the State agrees, legitimate ballots collected.by third parties are accepted and counted, and there are no criminal penalties to the voter. So, under H.B. 2023, if a ballot collector were to bring legitimate ballots to a voting center, the^ votes would be counted, but the collector would be charged with a felony. Thus, the only effect of H.B. 2023, although it is serious, is to make the collection of legitimate ballots by third parties a felony. So, unlike the circumstances involved in Purcell or Southwest Voter, the injunction at issue here does not involve any change at all to the actual election process. That process will continue unaltered, regardless of the outcome of this litigation. The only effect is on third party ballot collectors, whose efforts to collect legitimate ballots will not be criminalized, pending our review. No one else in the electoral process is affected. And no electoral process is affected.
In contrast, the voter-ID law at issue in Purcell changed who was eligible to vote and directly told election officials to turn people away if they lacked the proper proof of citizenship. That circumstance is far different from the case at bar where, as the district court pointed out, the law “does not eliminate or restrict any method of voting, it merely limits who may possess, and therefore return, a voter’s early ballot.” Feldman v. Arizona Sec’y of State, — F.Supp.3d -, -,
Second, none of the cases that caution against federal court involvement in elections involved a statute that newly criminalizes activity associated with voting. This law is unique in that regard.
Third, the concern in Purcell and Southwest Voter was that a federal court injunction would disrupt long standing state pro
Fourth, unlike the circumstances in Purcell and other cases, plaintiffs did not delay in bringing this action. This action was filed less than six weeks after the passage of the legislation, and plaintiffs have pursued expedited consideration of their claims at every stage of the litigation, both before the district court and ours. Indeed, it was the State that opposed an expedited hearing and briefing schedule at every turn, not the plaintiffs. ■ •
Fifth, Purcell was decided prior to the Supreme Court’s opinion in Shelby Cty. Ala. v. Holder, — U.S. -,
Indeed, this case presents precisely the opposite concern. In 2012, Arizona submitted a previous iteration of H.B. 2023 for preclearance.' The Department of Justice expressed concern and refused to preclear the bill, S.B. 1412, without more information about its impact on minority voters. Rather than address this concern, Arizona withdrew S.B. 1412 from preclearance and repealed it the following session. Now, unhindered by the obstacle of preclearance, Arizona has again- enacted this law — a mere seven months before the general election — -with nothing standing in its way except this court. Thus, not only are the preclearance protections considered important in Purcell absent in this case, but it is quite doubtful that the Justice Department would have granted preclearance. In the wake of Shelby County, the judiciary provides the only meaningful review of legislation that may violate the. Voting Rights Act.
Sixth, unlike the situation in Purcell, we have, as a. court,, given careful and thorough consideration to these issues. Purcell involved a barebones order issued by a two judge motion panel, which did .not contain a reasoned decision. As the Court described in Purcell, “[t]here has been no
In- short, the injunction applies to the operation of a statute that would impose felony sanctions on third parties for previously legal action in connection with elections when, as everyone concedes, the statute has no impact on the election process itself. We are preserving the status quo for this election, and we will consider the challenge to the new legislation at our en banc hearing in the next few months.
IT IS SO ORDERED.
APPENDIX
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Leslie Feldman; Luz Magallanes; Merce-dez Hymes; Julio Morera; Oleo 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,
Bernie 2016, Inc., Interoenor-Plaintiff-Appellant,
v.
Arizona Seoretary 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 them official capacities; Maricopa County Recorder and Elections Department; Helen Purcell, in her official capacity as Maricopa County Recorder; Karen Osborne, in hér official capacity as Maricopa County Elections Director; Mark Brno-vich, in his official capacity as Arizona Attorney General, Defendants-Appellees,
The Arizona Republican Party, Interve-nor-Defendantr-Appellee.
No. 16-16698
D.C. No. 2:16-cv-01065-DLR
OPINION
Appeal from the United States District Court for the District of Arizona, Douglas L. Rayes, District Judge, Presiding
Argued and Submitted October 19, 2016, San Francisco, California
Filed October 28, 2016
Before: SIDNEY R. THOMAS, Chief Judge, and CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges.
Opinion by Judge IKUTA; Dissent by Chief Judge THOMAS ■
COUNSEL
Bruce V. Spiva (argued), Amanda R. Cal-íais, Elisabeth C. Frost, and Marc E. Elias, Perkins Coie LLP, Washington, D.C.; Joshua L. Kaul, Perkins Coie LLP, Madison, Wisconsin; Sarah R. Gonski and Daniel C. Barr, Perkins Coie LLP, Phoenix, Arizona; for Plaintiffs-Appellants.
Malcolm Seymour, Garvey Schubert Baker, New York, New York; D. Andrew Gao-na, Andrew S. Gordon, and Roopali H. Desai, Coopersmith Brockelman- PLC,
Karen J. Hartman-Tellez (argued) and Kara M. Karlson, Assistant Attorneys General; Mark Bmovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendants-Appellees.
Sara J. Agne (argued), Colin P. Abler, and Brett W. Johnson, Snell & Wilmer LLP, Phoenix, Arizona, for Intervenor-Defen-dants-Appellees.
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,
Arizona has long supplemented its protection of the early voting process through the use of penal provisions, as set forth in section 16-1005 of Arizona’s statutes. For example, since 1999, it has been a class 5 felony for a person knowingly to mark or to punch an early ballot with the intent to fix an election. See 1999 Ariz. Legis. Serv. Ch. 32, § 12 (S.B. 1227) (codified as amended at Ariz. Rev. Stat. § 16-1005(A)). And in 2011, Arizona enacted legislation that made offering to provide any consideration to acquire an early ballot a class 5 felony. See 2011 Ariz. Legis. Serv. Ch, 105, § 3 (S,B. 1412) (codified at Ariz. Rev. Stat. § 16-1005(B)). That same legislation regulated the process of delivering “more than ten early ballots to an election official.” See id. (formerly codified at Ariz. Rev. Stat. § 16-1005(D)).
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: ■
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 the 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 Demoeratic 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. 2023⅛ limitation on third-party ballot collection will require the Democratic Party to retool its get-out-the-vote efforts, for example by increasing voter transportation to polling locations and revising its training scripts to focus on early in-person voting. This, in turn, will require the party to divert resources from projects like candidate promotion to more direct voter outreach to ensure that voters are either casting early ballots in person or mailing their ballots on time.
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-
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 appeal and for an expedited appeal. On October 14, a motions panel denied the former request, but granted the latter. The parties were directed to.file simultaneous, merits briefs by October 17, and the appeal was argued orally on October 19.
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 two 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,
HI
. 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 •that the district court erred in concluding that she was unlikely to succeed on her Voting Rights Act, Fourteenth Amendment, and First Amendment claims.
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 19.65 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 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.
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. Abbott,
[1] [T]he challenged standax-d, 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 showing of disproportionate impact on a racial minority does not satisfy the § 2 ‘results’ -inquiry.” Salt River,
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,
2
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 Aiinorities 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
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,
While § 2 itself does not require quantitative evidence, past cases suggest that such evidence is typically necessary to establish a disproportionate burden on minorities’ opportunity to participate in the political process.
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 communities.
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.
In addition, to the multiple declarations described above, Feldman submitted legislative testimony from the debates on H.B. 2023, showing that a number of lawmakers expressed concerns that H.B. 2023 would impact minority communities, rural communities, working families, and the elderly. This evidence likewise failed to compare minority communities to non-minority 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 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.
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 framework for facial challenges to voting laws under the Fourteenth and First Amendments, and then consider Feldman’s challenges.
1
The Constitution grants the States a “broad power, to prescribe the ‘Times,
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 fust 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 making a trip to the [state Bureau of Motor Vehicles], gathering the required documents, and posing for a photograph” to obtain the requisite identification.
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 axio
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. Rusted,
For similar reasons, we reject Feld-man’s argument that the district court erred in not considering whether Arizona’s “goals could have been achieved through less burdensome means.” Neither the Supreme Court nor we have required a state to prove there is no less restrictive alternative when the burden imposed is minimal. Burdick expressly declined to require that restrictions imposing minimal burdens on voters’ rights be narrowly tailored. See
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,
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 389-90 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 ón associational rights, as discussed supra at 391.
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 succeed on the merits of her First Amendment claim.
IV
Having concluded that the district court did not err in holding that Feldman failed
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 bo 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,
AFFIRMED.
Notes
. Meaningful review of H.B. 2023 is especial- . ly important because, as I observed in my dissent, the sponsors of H.B. 2023 could not identify a single example of voter fraud in Arizona caused by ballot collection, nor is there one to be found anywhere in the voluminous record before us. Judge Bybee cites to a 2005 report from the bi-partisan Commission on Federal Election Reform, which recommends that states should reduce the risks of fraud and abusé in absentee voting by prohibiting "third-party” organizations from handling absentee ballots. Bybee Dissent at 415-16. However, the Commission’s recommendation was issued before the Supreme Court invalidated the § 5 preclearance requirement; since that time, the voting rights landscape has changed considerably, requiring courts to exercise more vigilance as the primary bulwarks against voter suppression.
.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 com- - mittee 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-plaintiff/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 Kunaselc, 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 396 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, 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 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 of the minority group have been elected to public office in thé 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,
. The dissent does not dispute that under Gonzalez, the ultimate question is one of fact. Dissent at 396 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. at 396 n.1. 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 thé 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 are 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 401-02, 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 403-04. 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 or a federal court convened in the United States District Court for the District of
.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 403-04. But § 2 requires more than merely showing a burden on minorities. It requires plaintiffs to establish that minorities “have less opportunity than other members 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 ñor the defendants categorize the challenge to H.B. 2023 as a facial challenge.” Dissent at 399 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 398, 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 398. 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. "[Ojccasional 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 east 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 Fourteenth Amendments to the United States Constitution. The district court denied the
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, “[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 them street as a neighborly service.” The representative noted that there is only one post office, which is located across-a. highway crowded with ears 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 because of socioeconomic factors. Minority voters in urban areas were more likely to be eco-
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 oh 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 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
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 Andersortr-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 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,
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 on the totality of the circumstances.” 52 U.S.C. § 10301(b) (emphasis
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 “present[ ] 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
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 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 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 uncon-troverted: H.B. 2023 places a disproportionate burden on the voting opportunities
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 evidence is not needed to see that without ballot collecting, these voters will have less opportunity than other members of the electorate to participate in the political process.
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 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 coúrt 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 dispro
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 provides no information as to rural white voters. The district court viewed that as fatal to the plaintiffs’ claims. In fact, it meant that the plaintiffs had satisfied their threshold requirements, and the State had failed to rejoin. The district court erred in holding the plaintiffs to a higher evidentia-ry burden.
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 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 their 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
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 wa.s 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,
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 fifth factor, 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, falls decisively in favor of the plaintiffs. The plaintiffs tendered significant evidence showing that Arizona minorities suffered in education and employment opportunities, with disparate poverty rates, depressed wages, higher levels of unemployment, lower educational attainment, less access to transportation, residential transiency, and poorer health.
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 5.8% 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
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. 2028 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 or family. With H.B. 2023, Arizona has added another: disenfranchisement.
I respectfully dissent.
O’SCANNLAIN, Circuit Judge, with whom CLIFTON, BYBEE, and CALLAHAN, Circuit Judges, join, and with whom N.R. SMITH, Circuit Judge, joins as to Parts I, II, and III, dissenting from the order enjoining the State of Arizona:
The court misinterprets (and ultimately sidesteps) Purcell v. Gonzalez,
I
Some background: On September 23, 2016, the district court denied plaintiffs’ motion for a preliminary injunction blocking Arizona from implementing certain provisions in Arizona House Bill 2023 (H.B. 2023). These provisions limit the collection of voters’ early ballot's to family members, household members, certain government officials, and caregivers. Plaintiffs appealed. A Ninth Circuit motions panel unanimously denied plaintiffs’ emergency motion for an injunction pending appeal on October 11. That same panel sua sponte amended its October 11 ruling to expedite the appeal on October 14. A merits panel received briefing, heard oral argument; and issued an opinion on October 28, affirming the district court and denying the request for a preliminary injunction by a two-to-one. majority. The case was called en banc the same day the opinion was issued. Eschewing our normal en banc schedule, memo exchange was compressed into .five days, as opposed to our customary thirty-five. Now, just two days after the en banc call succeeded, and just four days before Election Day, the majority overturns the district court, a
II
The Supreme Court counseled against just this type of last-minute interference in Purcell. That case also involved our court’s issuing a last-minute injunction against the enforcement of a contested Arizona election law.
At first, it seemed that we might respect Supreme Court precedent this time around, when first the motions panel, and later the three-judge merits panel, wisely determined that no injunction should issue at this stage. Yet, after a third bite at the apple, here we are again — voiding Arizona election law, this time while voting is already underway
The majority recognizes the need to address Purcell and’ its progeny. But the
A
First, the majority makes the incomprehensible argument that its injunction “does not affect the state’s election processes or machinery.” Order at 7. The majority cites no law, fact, or source of any kind in support of this argument, and it is dubious on its face. Of course, H.B. 2023 directly regulates the state’s election processes or machinery: it governs the collection of ballots, which obviously is integral to how an election is conducted. But under the majority’s Orwellian logic, regulations affecting get-out-the-vote' operations are somehow not regulations of the “electoral process.” (What are they, then, one might ask? The majority doés not tell.) Apparently, the majority believes that only measures that affect the validity of a vote itself (or a voter herself) affect such process. Other courts, in ruling on similar regulations, have rejécted the majority’s view, and widely held that regulations of many aspects of an electibn beyond the validity of a vote affect the election process. See, e.g., Lair,
Tellingly, the majority barely addresses whether enjoining H.B. 2023 will create confusion and disruption in the final days of the election — a key factor in the Purcell decision.
B
The majority’s second argument — that this case is different because it involves a law that imposes criminal penalties — manages to be both irrelevant and incorrect. It is irrelevant because Purcell never says, or
C
Third, the majority misreads Purcell by inventing a supposed Purcell Court concern that the federal judiciary was “disrupting] long standing state procedures” and then equating it with the majority’s desire to preserve the pre-H.B. 2023 status quo. Order at 9. Nowhere in Purcell does the Court mention “long standing state procedures.” Proposition 200, the voter identification law at issue in Purcell, had been approved by Arizona voters in 2004 and was not precleared until May of 2005.
And that status quo can be a law or an injunction that has been in place for just a few months. See Frank,
D
Fourth, the argument that “unlike the circumstances in Purcell and other cases, plaintiffs did not delay in bringing this action” continues the majority’s pattern of inventing facts. Order at 9. Nowhere in Purcell does the Supreme Court discuss the timing of the plaintiffs’ filing. Nowhere does it say that the plaintiffs affected their chances of success by delaying their filing. Nowhere does it use this factor in its analysis. Indeed, as recounted above, the Supreme Court is far more focused on the date of court orders that upset the status quo in relation to the date of the election. See, e.g., League of Women Voters,
E
Finally, perhaps betraying its real motivation, the majority bafflingly suggests that our last-minute intervention is required now that the Supreme Court struck down the federal preclearance mechanism in Shelby County v. Holder, — U.S. -,
Even if the majority believes that courts should engage in a heightened review of voting laws after Shelby County — and I stress the Supreme Court has given us absolutely no reason to believe we should — that does not support the notion that such review matters at this stage of litigation. Purcell is plainly about the impact a court order will have on an upcoming (or in our case, ongoing) election, not the merits of the constitutional claim underlying that order. Id. Pre-clearance, Shelby County, and the merits of the challenge to H.B. 2023 are beside the point. Four days before an election is not an appropriate time for' a federal court to tell a State how it must reconfigure its election process.
Ill
Unfortunately, though I believe the merits should not have been reached until a more thorough review of the case could have been conducted — and ideally more evidence could have been collected, including quantitative data — the majority’s decision to consider and then to grant an injunction pending appeal forces the issue. In doing so, and given the current record, the majority, by adopting Chief Judge Thomas’s dissent, makes various errors in both its constitutional and federal statutory analysis that further undermine its argument that an injunction is necessary. Order at 6 (adopting the reasoning of Feldman v. Arizona Sec’y of State,
Unlike the majority, we are persuaded by the analysis of the vacated three-judge panel' majority opinion and the district court opinion. Feldman,
A
The majority’s Fourteenth Amendment analysis falsely claims the district court improperly conducted a “rational basis” review. Feldman,
The majority argues that H.B. 2023 imposes a “substantial burden” on voting, but this cannot be reconciled with the fact six Justicés in Crawford v. Marion Cnty. Election Bd.,
, The, majority argues that the “state’s justification for the law was weak.” Feld-man,
B
The majority’s Voting Rights Act of 1965 (VRA) Section 2 analysis is equally shoddy. 52 U.S.C. § 10301, It concedes that no statistical or quantitative evidence exists in the record. Feldman,
Yet, it then argues that the district'court erred by asking plaintiffs to show the burden on minority voters was greater than that of white voters. Id. at 1093-94. But the plaintiffs had the burden of showing disparate treatment. Instead of acknowledging that the current record’s lack of facts showing a disparate impact is fatal to this claim, the majority invents a burden-shifting requirement. Id. at 1085-89. It argues that “once the plaintiffs had established the burden on minority voters” the district court erred by not “shifting the burden of rejoinder to -the State.” Id. at 1094, This burden-shifting requirement— which would require the state to prove a negative (no disparity if minorities are burdened) — has no support in the law.
IV
Finally, the unusual procedural history leading up to this decision and the contrived time pressure we placed ourselves under in rendering this decision underscores exactly why courts refrain from in
After presumably fuller consideration than our own, a district court judge, a three-judge motions panel, and a two-judge majority of a separate merits panel all rejected Feldman’s attempt to have enforcement of H.B, 2023 enjoined for the current election. Yet, with only three days of review (and no oral argument), a majority of our hastily constructed en banc panel has reversed course, requiring Arizona to change its voting procedures the weekend before Election Day. The record presented in this appeal exceeds 3000 pages; the parties’ briefs (which now total five, after additional en banc briefing) present complex and well-reasoned arguments; and the alleged constitutional violations are serious. But our en banc panel has found it appropriate (indeed imperative) to resolve the matter in less time than we might usually take to decide a motion to reschedule oral argument.
Despite the majority’s pretenses to having “given careful and thorough consideration” to the issues presented in this case, Order at 10, one wonders how much the obvious dangers inherent in our rushed and ad hoc process have infected the decision in this case. Cf. Purcell,
The circumstances of this case do not inspire confidence in the majority’s order. First, the majority does not appear even to have resolved what, to label the relief it has determined must be handed down in this case.
Worse still is the precedent this hastily crafted decision will create. The majority purports to delay ruling on the merits of the challenge to H.B. 2023 — presumably so that this case can be carefully considered. Order at 11. But it “essentially” adopts the reasoning of a twenty-nine page dissent from the priginal three-judge panel opinion, Order at 6, which concludes that it is clear “this law violates the Constitution and the Voting Rights Act.” Feldman,
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 380. 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, 775 F.3d at 1123. Most of the district court’s opinion involves a mixed question of law and fact. In election cases, as with other appeals, we review such decisions de novo. United States v. Blaine County, Montana,
. 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 391, 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. Taku-shi[:T it is a "balancing and means-end fit framework.” Pub. Integrity All.,
. The majority asserts that plaintiffs 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 388 (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 disproportionate burden.” Maj. Op. at 381. 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 382 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,
. The order alternately discusses whether to grant an “injunction” pending appeal, Order at 6, and a “stay” pending appeal, id. at 6, 11. Stays and injunctions are two different things: a stay postpones the judgment or order of a court; an injunction, of course, commands or prohibits action by a third party. See, e.g., Fed. R. App. P. 8 (Stay or Injunction Pending Appeal); “Injunction,” Black’s Law Dictionary (10th ed. ,2014); “Stay,” Black's Law Dictionary (10th ed. 2014). Because before today no court has ordered Arizona not to enforce H.B. 2023, the majority presumably means that today it issues an injunction against the State from enforcing a particular statute.
. Early voting in Arizona began more than three weeks ago, on October 12.
. Likewise, the Court stayed a permanent injunction imposed by a district court and affirmed by the Sixth Circuit on September 24, 2014, which would have required Ohio to add early in-person voting hours. See Husted v. Ohio State Conference of N.A.A.C.P., — U.S. -,
. This lack of factual support is a recurring theme, and another reason this court should wait until after the election to act. See Purcell,
Id.
.
. Sometimes we are forced to act under time pressure, such as death penalty habeas review, but while the final orders may issue hours before execution, these cases are usually the cumulation of years of carefully considered litigation.
. Supra note 1.
. Indeed, the majority strongly implies the issues are so important that they need to be decided right away. But every voting rights case pits similar arguments about the fundamental right to vote against arguments about a State’s need and right to regulate its elections. See, e.g., Crawford,
To accept the majority’s argument that the importance of this case compels action leaves one wondering what change in election law would not qualify as important. Cf. Clingman v. Beaver,
. The Commission on Federal Election Reform was organized by American University's Center for Democracy and Election Management and supported by the Carnegie Corporation of New York, The Ford Foundation, the John S. and James L. Knight Foundation, and the Omidyar Network. It was co-chaired by former President Jimmy Carter and former Secretary of State James Baker.
Dissenting Opinion
with whom Circuit Judges O’SCANNLAIN, CLIFTON, CALLAHAN, and N.R. SMITH join, dissenting:
I join in full Judge O’Scannlain’s dissent. I write separately to emphasize two brief points: First, Arizona’s restrictions on who may collect an early ballot — a question very different from who may vote by early ballot — follows closely the recommendation of the bipartisan Commission on Federal Election Reform. Second, the Arizona early ballot law at issue here is a common provision, and similar restrictions on the collection of early or absentee ballots may be found on the books of some twenty-one states. Those provisions have been in effect for decades, and they have been enforced. Unless the Voting Rights Act means that identical provisions are permissible in some states and impermissible in other states, our decision would invalidate many of those provisions, including provisions in other states of the Ninth Circuit.
I
There is no constitutional or federal statutory right to vote by absentee ballot. See McDonald v. Bd. of Election Comm’rs of Chic.,
Arizona’s restrictions on the collection and handling of absentee ballots are neutral provisions designed to ensure the integrity of the voting process. Although the majority claims that there is no evidence of “voter fraud in Arizona caused by ballot collection,” Maj. Op. at 369, (adopting Feldman v. Ariz. Sec’y of State,
The Commission on Federal Election Reform recommended that “States ... should reduce the risks of fraud and abuse in absentee voting by prohibiting ‘third-party’ organizations, candidates, and political party activists from handling absentee ballots.” Building Confidence, supra, at 46. It made a formal recommendation:
State and local jurisdictions should prohibit a person from handling absentee ballots other than the voter, an acknowledged family member, the U.S. Postal 'Service or other legitimate shipper, or election officials. The practice in some states of allowing candidates or party workers to pick up and deliver absentee ballots should be eliminated.
Id. at 47 (Recommendation 5.2.1). Arizona’s restrictions hew closely to the Commission’s recommendation. H.B. 2023 provides that “A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony.” Ariz. Rev. Stat. Ann. § 16-1005(H) (codifying H.B. 2023). Consistent with the Commission’s recommendation, the law does not apply to three classes of persons: (1) “[ajn election official,” (2) “a United States postal service worker or any other person who is allowed by law to transmit United States mail,” and (3) “[a] family member, household member or caregiver of the voter.” Id. § 16-1005(H)~ (I)(l). I don’t see how Arizona can be said to have violated constitutional or statutory norms when it. follows bipartisan recommendations for election reform in an area well understood to be fraught with the risk of voter fraud. Nothing could be
II
Moreover, the Arizona provision is substantially similar to the laws in effect in other states. In Indiana, for example, it is a felony for anyone to collect a voter’s absentee ballot, with exceptions for members of the voter’s household, the voter’s designated attorney in fact, certain election officials, and mail carriers. Ind. Code § 3-14-2-16(4). Connecticut also restricts ballot collection, permitting only the voter, a designee of an ill or disabled voter, or the voter’s immediate family members to mail or return an absentee ballot. Conn. Gen. Stat. § 9-140b(a), New Mexico likewise permits only the voter, a member of the voter’s immediate family, or the voter’s caregiver to mail or return an absentee ballot. N.M. Stat. Ann. § 1-6-10,1. At least seven other states (Georgia, Missouri, Nevada, North Carolina, Oklahoma, Ohio, and Texas) similarly restrict who can personally deliver an absentee ballot to a voting location. Ga. Code Ann. § 21-2-385(a) (limiting who may personally deliver an absentee ballot to designees of ill or disabled voters or family members); Mo. Rev. Stat. § 115.291(2) (restricting who can personally deliver an absentee ballot); Nev. Rev. Stat. § 293.330(4) (making it a felony for anyone other than the voter or the voter’s family member to return an absentee ballot); N.C. Gen. Stat. § 163-231(b)(l) (allowing only family members or guardians to personally deliver an absentee ballot); Okla. Stat. Tit. 26, § 14-108(0 (voter delivering a ballot must provide proof of identity); Ohio Rev. Code Ann. § 3509.05(A) (limiting who may personally deliver an absent voter’s ballot); Tex. Elec. Code Ann. § 86.006(a) (permitting only the voter to personally deliver the ballot).
Other states are somewhat less restrictive than Arizona because they, permit a broader range of people to collect early ballots from voters but restrict how many ballots any one person can collect and return. Colorado forbids anyone from collecting more than ten ballots. Colo. Rev. Stat. § l-7.5-107(4)(b); cf. Ga. Code Ann. § 21-2-385(b) .(prohibiting any person from assisting more than ten physically disabled or illiterate electors in preparing their ballot). North Dakota prohibits anyone from collecting more than four ballots, N.D. Cent. Code § 16.1-07-08(1); New Jersey, N.J. Stat. Ann, § 19:63^4(a), and Minnesota, Minn. Stat. Ann. § 203B.08 sbd. 1, three; Arkansas, Ark. Code Ann. § 7-5-403," Nebraska, Neb. Rev. Stat. § 32-943(2), and West Virginia, W. Va. Code § 3-3-5(k), two. South Dakota prohibits anyone from collecting more than one ballot without notifying “the person in charge' of the election of all voters for whom he is a messenger.” S.D. Codified Laws § 12-19-2.2.
Some of the laws are stated as a restriction on how the early voter may return a ballot. In those states, the voter risks having his vote disqualified. See, e.g., Wrinn v. Dunleavy,
Ill
“[T]he right to vote is the right to participate, in an electoral process that is necessarily structured to maintain the integrity of the democratic system.” Burdick v. Takushi,
dissenting:
I join Parts I, II, and III of Judge O’Scannlain’s dissent, along with Judge Bybee’s separate dissent. However, I write separately to emphasize that the majority erred in granting the stay pending appeal, because Appellants cannot meet the standard set forth by Lopez v. Heckler,
The standard for granting a stay pending appeal is well established: (1) “the moving party is required to show both a probability of success on the merits and the possibility of irreparable injury”; (2) “the moving party must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in its favor”; and (3) we should “strongly consid-ere]’’ the- “public interest.” Id.; see also
In applying these standards here, I wholeheartedly agree with Judge Ikuta’s three-judge panel majority opinion in Feldman v. Arizona,
Judge Ikuta thoroughly analyzed Appellants’ likelihood of success on the merits of each theory appealed to us. See Feldman, 840 F.3d at 1068-85. When evaluating whether the district court based its decision by applying an erroneous legal standard, Judge Ikuta first properly applied the two-part legal framework, adopted by our sister circuits, in resolving the Voting Rights Act issue. Id. at 1068-80. She explained why the district court properly applied that legal authority. Id. at 1080-83. I agree that, because the district court found that Appellants’ § 2 claim failed at the first prong, it had no obligation to reach the second prong. Id. at 1076-77. Judge Ikuta next laid out the legal framework for facial challenges to voting laws under the Fourteenth and First Amendments and considered Feldman’s challenges. Id. at 1077-85. She properly applied the Anderson/Burdick, balancing test. Id. at 1079-85. As to the Fourteenth Amendment claim, she explained why “the district court did not clearly err in finding that H.B, 2023 did not ‘significantly increase the usual burdens of voting.’ ” Id. at 1079. She correctly applied Crawford in that analysis. Id. at 1079-84. Lastly, Judge Ikuta addressed the legal authority applicable to the First Amendment claim and correctly determined that “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.” Id. at 1084.
Appellants also failed to establish that the district court’s decision as to the facts was “(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” Id. at 1076 (quoting United States v. Hinkson,
Having concluded that the district court did not err in holding that Appellants failed to demonstrate a likelihood of success on the merits, Judge Ikuta then considered the remaining factors for issuing a preliminary injunction. Id. at 1084-87. I agree with her that Appellants. have not established that irreparable harm will flow from a failure to enjoin Arizona, because it is not likely they will suffer a violation of their statutory or constitutional rights. See id. at 1084-85. Appellants have failed to show that the balance of hardships tips
This error is further compounded by issuing this stay on the eve of an election. As Judge O’Scannlain excellently points out in his dissent, when our court is presented a request to interfere in a state’s election laws, “just weeks before an election” we 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,
We underscore that we express no opinion here on the correct disposition, after full briefing and argument, of the appeals from the District Court’s September 11 order or on the ultimate resolution of these cases. As we have noted, the facts in these cases are hotly contested, and “[n]o bright line separates permissible election-related regulation from unconstitutional infringements.” Timmons v. Twin Cities Area New Party,520 U.S. 351 , 359 [117 S.Ct. 1364 ,137 L.Ed.2d 589 ] (1997). Given. the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed ivithout an injunction suspending the voter identification rules.
Id. at 5-6 (emphasis added).
In other words, even if the Ninth Circuit were right in the ultimate decision to enjoin the application of the voter identification rules in Purcell, “[g]iven the imminence of the election and the inadequate time to resolve the factual disputes,” the Supreme Court, out “of necessity,” allowed the election to proceed without a stay of the application of the voter identification rules. Id.
I especially note the advice in the concurrence of Justice Stevens:
Allowing the election to proceed without enjoining the statutory provisions at issue will provide the courts with a better record on which to judge their constitutionality .... Given the importance of the constitutional issues, the Court wisely takes action that will enhance the likelihood that they will be resolved correctly on the basis of historical. facts rather than speculation.
Id. at 6 (Stevens, J., concurring). Even if I were to agree with the majority, that a preliminary injunction should issue, I would heed Justice Stevens’s advice and allow Arizona’s law to be evaluated on
. Moreover, at least two states had similar provisions on the books until recently. California formerly limited who could return mail ballots to the voter's family or those living in the same household. Cal. Elec. Code § 3017. It only amended its law earlier this year. 2016 Cal. Legis. Serv. Ch. 820. Illinois also used to make it a felony for anyone but the voter, his or her family, or certain licenced delivery companies to mail or deliver an absentee bed-lot. 10 Ill. Comp. Stat 5/19-6 (1996); 10 Ill. Comp. Stat. 5/29-20(4). Illinois amended that provision in 2015. to let voters authorize others to mail or deliver their ballots. 10 Ill. Comp. Stat. 5/19-6 (2015).
, Early voting in Arizona occurs from October 12, 2016, through November 4, 2016. Staying the enforcement of H.B. 2023 at this late date (which would only allow persons to drop off the early ballots today and on Election Day) will likely result in greater confusion and will not provide courts with a better record of the law’s constitutionality.