Leslie Feldman v. Arizona Sec'y of State's Ofc.

Party, Republican categor- The Arizona “unambiguously and gress has not .law. Intervenor-Defendant- positive through ically protected” Appellee. step completely out notion is Such principles of administrative most basic No. 16-16698 law, rule law itself. if not the Appeals, United States Court I dissent. respectfully Ninth Circuit. Filed November FELDMAN; Magallanes; Luz Leslie Morera; Hymes; Cleo Julio

Mercedez

Ovalle; Zah, Former Chair- Peterson Navajo First President

man

Nation; The Democratic National

Committee; DSCC, AKA Democratic Committee; The Campaign

Senatorial Party; Kirkpat- Democratic Hillary Senate; for Amer-

rick

ica, Plaintiffs-Appellants, 2016, Inc.,

Bernie Intervenor-

Plaintiff-Appellant, OF

ARIZONA SECRETARY STATE’S

OFFICE; Reagan, in her offi- Michele capacity Secretary

cial as State County

Arizona; Maricopa Board Barney;

Supervisors; Denny Steve

Chucri; Andy Kunasek; Hick Clint

man; Gallardo, member of Steve County

Maricopa Supervi Board

sors, capacities; in their official Mari

copa County Recorder Elections Purcell,

Department; Helen of in her County capacity Maricopa

ficial as

Recorder; Osborne, offi Karen in her County capacity Maricopa

cial as Brnovich, Director;

Elections Mark capacity Arizona Attor

his official General, Defendants-Appellees,

ney O’SCANNLAIN; by Judge

Dissent BYBEE; by Judge Dissent by Judge Dissent N.R. SMITH ORDER THOMAS, Judge: Chief granted, in prior order, We rehearing en bane in appeal. separate order, In a concurrently filed opinion, with this -we en argument scheduled banc oral for the 17, 2017, of January week in San Francis- co, then, California. question, D.C. No. 2:16-cv-01065-DLR grant whether to plaintiffs’ motion for an Bruce Spiva (argued), V. Amanda R. injunction pending appeal. A panel motions Calíais, Frost, C. Elisabeth and Marc E. instance, denied the motion first but Elias, LLP, Perkins Washington, Coie may we reconsider that as an decision en D.C.; Kaul, LLP, Joshua L. Perkins Coie herein, banc court. For the reasons stated Madison, Wisconsin; Sarah R. Gonski and grant we the motion. Barr, LLP, Daniel C. Perkins Coie Phoe- nix, Arizona; for Plaintiffs-Appellants. evaluating The standard for an Seymour, Garvey

Malcolm Schubert injunction Baker, York, pending appeal is similar to York; New New D. Andrew Gaona, Gordon, Andrew S. Roopali employed H. by district in déciding courts Desai, PLC, Coopersmith Brockelman grant preliminary whether to injunction. Phoenix, Arizona, for Intervenor-Plaintiff- (9th Heckler, Lopez v. 713 F.2d Appellant. 1983); Cir. see also Alaska Southeast Con Karen J. (argued) Hartman-Tellez Army Corps servation Council v. U.S. Karlson, Kara Attorneys M. Assistant (9th 2006) Eng’rs, Cir. General; Brnovich, Mark Attorney Gener- (order) injunctions (discussing pending ap al; General, Attorney Office of the Phoe- Therefore, peal). grant the motion for a nix, Arizona; for Defendants-Appellees. preliminary injunction pending appeal es Abler, Agne (argued), Sara J. Colin P. sentially provided the reasons Johnson, and Brett W. Snell & Wilmer Sec’y dissent in Feldman v. Arizona LLP, Arizona, Phoenix, for Intervenor- State, 1085-98 Defendants-Appellees. 2016), copy (along is attached which copy majority opinion). with a THOMAS,

Before: SIDNEY R. Chief Judge, and DIARMUID F. However, there are additional consider- O’SCANNLAIN, A. WILLIAM granting ations an in- when we consider FLETCHER, B. JOHNNIE junction in an pending appeal election RAWLINSON, CLIFTON, R. RICHARD appeal case. When faced an cases with BYBEE, JAY S. CONSUELO M. pending, election' is federal CALLAHAN, SMITH, N. RANDY MARY “required weigh, in courts are addition MURGUIA, WATFORD, H. PAUL J. OWENS, upon JOHN B. the harms attendant issuance or Judges. Circuit penalties to the there are no criminal vot- injunction, of an consider- nonissuance So, if collector Purcell v. er. under H.B. a ballot cases.” specific ations 1, 4, legitimate Gonzalez, bring 166 were to ballots curiam). center, counted, (2006) would be And we do the^votes (per but L.Ed.2d charged felony. ... a state elec- collector “lightly interfere with would Thus, only effect of Registration Pro- the H.B. tion.” Sw. Educ. al- Voter serious, though is to make the collec- Shelley, is it ject v. banc). 2003) (en parties of legitimate by tion ballots third So, felony. in- unlike the circumstances outset, important At the it is to remem Voter, or volved in Purcell Southwest the Supreme Court Purcell did ber the in injunction here not involve at issue does prohibition against per not set forth a se any change at all election the actual enjoining voting of an laws the eve process. process will continue unal- That 4, 127 5; also election. U.S. at see tered, of of this regardless the outcome — U.S. -, Perry, Veasey v. litigation. only party effect The is third (2014) J„ 9, 10, 190 (Ginsburg, L.Ed.2d collectors, to collect whose efforts (“Purcell dissenting) held that courts criminalized, legitimate not ballots will of must take careful considerations account in pending our No one else review. the cases, not to election that election specific no elec- process electoral is And affected. exempt stay from cases traditional process is affected. toral standards.”). Rather, must courts assess contrast, particular the case the voter-ID at issue circumstances each law light who expressed by changed eligible concerns the Purcell was vote in directly court to whether an told election officials turn Purcell determine junction is'proper. away they proper if people lacked the proof citizenship. That circumstance is case, In this the factors animated where, far different from at bar case Supreme concern in Court’s Purcell out, pointed court the law as First, injunction present. are not does or any “does not eliminate restrict method processes or hot affect the election state’s merely may of voting, pos it who limits machinery. injunction pending appeal sess, return, early therefore a voter’s sought by plaintiffs change not would State, Sec’y ballot.” Feldman Arizona process, simply enjoin electoral would — -, -, F.Supp.3d WL legislative enforcement act that would (D. 2016). Thus, Ariz. at *9 our collection, by persons criminalize other case, Purcell, injunction contrast voter, legitimately than 'the cast ballots. will not confuse election officials or deter H.B. 2023 election amended Arizona’s people going to the for fear that polls from person “A provide statutes to who they requisite lack the documentation. The knowingly early collects unvoted voted process election is unaffected. guilty person ballots from another Second, none of the cases that caution felony.” Ariz. Rev. 16- class Stat. against in elec- court involvement federal 1005(H). enforcement of H.B. Enjoining newly tions a statute that crimi- involved any 2023 will effect on voters activity voting. nalizes This associated with themselves, on offi- the conduct election is unique regard. in that polls, cials at the counting or on Third, ballots. Under and South- H.B. State concern Purcell agrees, legitimate injunc- collected.by ballots west that a third Voter was federal counted, parties pro- tion disrupt long standing are accepted and would state Here, injunction preserves cedures. ments Department United States quo prior legisla- result, the status recent Justice. As a prima was a there Every tive action H.B. 2023. other elec- facie reason to believe that challenged cycle in permitted tion Arizona has statute discriminatory, alleviating collection of legitimate ballots the-concern that third the law violated'voting So, Purcell, parties injunc- rights. to election officials. 127 S.Ct. 5. case does not involve dis- same That reassurance absent here. ruption to standing long Arizona’s Indeed, presents this case precisely the procedures. contrary, To it restores opposite concern. In Arizona submit- quo the status disruption to the creat- ante previous ted H.B. 2023 for iteration ed the Arizona that is legislature affect- preclearance.' Department of Justice cycle this election for the first time. expressed concern preclear and refused to

Fourth, bill, unlike the in the circumstances Pur- S.B. without more informa- cases, other cell and impact not de- plaintiffs minority did about its voters. in lay bringing this action. This action was concern, Rather than address this Arizona filed passage less six weeks after the S.B. from preclearance withdrew and legislation, of the plaintiffs pur- repealed and Now, it following the session. un- expedited sued by consideration of preclearance, hindered the obstacle every stage litigation, claims at of the again- Arizona has enacted this both law—a Indeed, before the district court ours. and mere seven months general before the it opposed expedited the State that an nothing standing election—-with in way hearing briefing every and except Thus, schedule this court. are the n (cid:127) turn, not plaintiffs. preclearance the protections impor- considered tant in case, Purcell in absent but Fifth, prior Purcell was decided the quite Department doubtful that the Justice Supreme opinion Shelby Cty. Court’s in granted would have preclearance. In the — Holder, -, Ala. v. U.S. County, wake of judiciary pro- the Shelby (2013), L.Ed.2d which de only meaningful legisla- vides review Rights Voting clared unconstitutional may tion that Voting Rights violate the. formula, coverage Act’s effectively in and Act.1 preclearance requirements validated under short, § Sixth, 5 of Purcell, Act. In Purcell was decid unlike situation in have, court,, preclearance regime ed when the as given under careful and thor- a. § 5 of Voting Rights ough Act was still consideration these Purcell issues. intact, jurisdic was a covered a by involved issued a barebones two order tion. emphasized judge The Court Purcell panel, motion which did .not contain challenged passed had already As reasoned de- decision. Court require Purcell, § 5 then-effective scribed in preclearance been no has “[t]here Meaningful 1. especial- review of 2023 is voting by prohib- H.B. fraud in absentee and abusé because, ly important my iting . "third-party” organizations as I observed in from han- dissent, sponsors dling Bybee of H.B. 2023 could not Dissent at absentee ballots. 415- However, identify single example fraud voter 16. the Commission’s recommenda- collection, Arizona caused nor Supreme tion was before the issued Court anywhere there one to preclearance be found volumi- requirement; invalidated time, Bybee Judge voting rights landscape nous record before us. cites to a since that report changed considerably, requiring from the Commission has courts bi-partisan Reform, vigilance Election primary Federal which recom- exercise more as the bul- against mends reduce suppression. states should the risks of voter warks Appeals given the Court

explanation ruling findings showing the Denny County Supervisors; Bar- Board incorrect.” to be District Court Andy Kunasek; ney; Chucri; Clint Steve Here, judge merits a three member Gallardo, Hickman; Steve issued argument panel held oral has Supervisors, in Maricopa County Board detailed, and dissent. decision reasoned County Maricopa capacities; official them considered has also en banc court Our Department; and Elections Recorder essen and reached a decision these issues capacity official as her Purcell, Helen forth the dis reasons set tially for the Recorder; County Maricopa Os- Karen our not a sent. This is case which Maricopa as capacity hér official borne, injunction detailed without has issued Director; Mark County Elections Brno- of the issues. resolution consideration capacity in his as Arizona official vich, General, short, to the injunction applies Attorney Defendants-Appellees, In- impose would statute that operation Republican Interve- Party, The Arizona parties previ- felony on third sanctions nor-Defendantr-Appellee. action in connection elec- ously legal 16-16698 No. concedes, when, stat- everyone tions process impact no ute has D.C. No. 2:16-cv-01065-DLR for preserving quo status are itself. We OPINION election, chal- we consider the and will Appeal from States District United legislation our en banc lenge to new Arizona, Douglas for the District of Court hearing in the next few months. Rayes, Judge, Presiding L. District IT SO ORDERED. IS 19, 2016, Argued and October Submitted APPENDIX Francisco, San California Filed October PUBLICATION FOR THOMAS, R. Before: SIDNEY Chief OF UNITED COURT STATES BEA Judge, and T. SAN- CARLOS and THE APPEALS FOR IKUTA, Judges. DRA S. Circuit NINTH CIRCUIT IKUTA; Dissent Opinion Judge Feldman; Magallanes; Luz Merce- Leslie n Judge Chief THOMAS Ovalle; Hymes; Morera; dez Julio Oleo and Former Chairman Zah, Peterson Nation; Navajo

First President COUNSEL Committee; DSCC, Democratic National Spiva Amanda (argued), Bruce V. Cal- R. Campaign AKA Democratic Senatorial íais, Frost, and Marc E. Elisabeth C. Eli- Committee; Par- Democratic Arizona as, LLP, D.C.; Washington, Coie Perkins Hillary Kirkpatrick for Senate; ty; LLP, Kaul, L. Joshua Perkins Coie Madi- America, Plaintiffs-Appellants, Wisconsin; son, and Sarah R. Gonski Dan- Inc., Barr, LLP, Phoenix, Bernie C. Interoenor-Plaintiff- iel Coie Perkins Appellant, Arizona; for Plaintiffs-Appellants. Seymour, Garvey Bak- Malcolm Schubert Seoretary York; er, York, D. Andrew Gao- New New Office; Arizona State’s Mi- na, Gordon, capacity Roopali and H. her official Andrew S. Reagan, chele Maricopa Arizona; Desai, PLC, Brockelman- Secretary Coopersmith State Phoenix, Arizona, tionately adversely impacts minorities, Intervenor-Plaintiff- and Appellant. vote, unjustifiably burdens the interferes with the freedom of association. (argued) Karen J. Hartman-Tellez After the district court denied Feldman’s Karlson, Attorneys Kara M. Assistant motion for a preliminary injunction, Feld- General; Bmovich, Mark Attorney Gener- man filed this emergency interlocutory ap al; General, Attorney Office of the Phoe- peal. Because district court did not nix, Arizona; for Defendants-Appellees. abuse discretion denying motion, Abler, Agne J. P. (argued), Sara Colin affirm. Johnson, LLP, Brett W. Snell & Wilmer Phoenix, Arizona, for Intervenor-Defen- I dants-Appellees. The district court’s denying order motion for a preliminary injunction sets OPINION detail, forth the facts in Feldman v. Ariz. IKUTA, Judge: Circuit — Sec’y Office, State’s F.Supp.3d -, April Feldman Leslie and other CV-16-01065-PHX-DLR, No. 2016 WL appellants1 brought an action in district (D. Ariz. Sept. 2016), so we court challenging House Bill 2023 provide only a summary brief perti (H.B. 2023), precludes individuals nent background procedural facts and his who do not fall into one of several excep tory. The district court’s factual findings officials, carriers, tions (e.g., election mail they discussed detail as become . members, members, family household analysis. relevant our specified caregivers) collecting early froth A

ballots from another person. See Ariz. 5, (H.B. 2023) Legis. (West) § Serv. Ch. permits Arizona “[a]ny qualified law (codified 16-1005(H)~ § at Ariz. Rev. Stat. by early elector” to “vote ballot.” Ariz. (I)). Feldman, According 16-541(A).3 to this state stat § Rev. Early voting Stat. can § Rights ute 2 of the Act Voting violates by occur mail or in person at an on-site 1966, 10301, § 52 U.S.C. the Fourteenth early voting days location in the 27 before 16-542, Amendment, and the First Amendment2 § an See All election. id. Arizona because, among things, dispropor other it operate early counties at least one on-site below) appellants (plaintiffs 1.The here Bernie Sanders as President United Feldman, Magallanes, convenience, Leslie .Luz Mercedez ap- For States. we refer to the Morera, Ovalle, Hymes, regis- Julio and Cleo pellants as "Feldman.” Maricopa County, tered Democratic Arizona; Zah, Peterson former Chairman law, 2. Because 2023 is a H.B. state the chal Navajo reg- First President of the Nation and lenge technically arises under the Fourteenth Arizona; Apache County, istered voter in Amendment, applies the First Amend DSCC, Committee;, Democratic National protections against ment’s States and munici aka Campaign Democratic Senatorial Com- Gilleo, palities. City See Ladue v. mittee; Party; the Arizona Democratic a com- 43, n.1, 45 & 129 L.Ed.2d 36 - supporting the election of mittee Democratic (1994). Representative Kirkpatrick America, States United Ann Senate; Hillary to U.S. for "qualified any person 3. A elector” is at least supporting Hillary committee the election eighteen age years of on or before the date of Clinton President as of the United States. The registered properly the election "who is to intervenor-plaintiff/appellant Bernie is 16-121(A). § vote.” Ariz. Rev. Stat. Inc., supporting committee the election (S.B. 1227) (codified 32, § 12 may also Ch. voting Voters return location. 16-1005(A)). § at Ariz. amended Stat. person any polling place Rev. ballots their legislation line, And Arizona enacted waiting in coun- several without offering provide any consid- that made drop boxes additionally provide special ties acquire a class 5 early eration ballot an Moreover, early vot- submission. for ballot Ch, 105, felony. Legis. See 2011 Ariz. Serv. mail, early by an can vote either ers 1412) (codified (S,B. § Ariz. Rev. Stat. having them by election or individual 16-1005(B)). legislation regu- § same That voting early to a permanent names added delivering “more process than lated every early An ballot is mailed list. official.” early ten ballots an See of course no list as a matter person (formerly at Ariz. Rev. id. codified Stat. first early than the day later 16-1005(D)). § 16-544(F). may § return Id. period. Voters again In revised section Arizona cost, by at no but ballot mail early by regulate enacting 16-1005 H.B. 2023 by on election p.m. received 7:00 must be early the collection ballots. This law 16-548(A). 16-642(0; day. §§ Id. following provisions the exist- added any Arizona has prohibited Since imposing persons penalties statute having person other elector from than the n early abusing voting process: ab “possession of that unvoted elector’s person knowingly H. A who collects Legis. See 1991 Ariz. Serv. sentee ballot.” early voted unvoted ballots from an- (S.B. 1390) (West). 310, § Ch. felony¡ person guilty of a class 6 other legislature expanded pro the Arizona official, post- An election a United States prevent person other any hibition any person al service worker or other having possession from the elector allowed to transmit Unit- who is early ballot. See 1997 Ariz. type unvoted mail not to ed is deemed States 1003) (West) (S.B. § Legis. Ch. Serv. official, early if collected the. Rev, 16-542(D)). (codified at Ariz. Stat. other engaged person worker or ex Supreme As Court official duties. plained, regulations on the distribution H of this section .not I. Subsection does early Ari ballots advance absentee n apply to: vot zona’s constitutional interest secret special An election held tax- VII, 1,§ “by ing, see Ariz. Const. art. ing to title pursuant district formed to setting procedural safeguards pre forth purpose for the of or protecting pro- influence, fraud, tamper ballot vent undue viding agricultural services to lands or Pi ing, and voter intimidation.” Miller crops to and is authorized con- Elementary cacho Dist. No. Sch. title 48. pursuant duct elections to (en (1994) Ariz. 877 P.2d 277 member, family A2. household tianc). caregiver member or voter. For pro- its long supplemented Arizona has paragraph: of this purposes voting the early process through tection of (a) “Caregiver” a person means penal provisions, set use as forth provides or health who medical care For 16-1005 of Arizona’s section statutes. in a assistance to resi- the voter example, it class since has a dence, institution, been nursing care hos- felony person knowingly mark or for to facility, living center, pice assisted punch early to living facility,- to an ballot intent with the assisted assisted liv- home, care Legis. fix an See Serv. residential institu- election. 1999 Ariz. tion, day facility or ic Party early adult health care has collected ballots from its constituencies, care core which it to in- adult foster home. views Hispanic, American, clude Native Afri- and (b) gain pos- “Collects” means to can American According voters. to Feld- early or session control ballot. 2023 n man, limitation on third-party H.B. (c) “Family per- member” means require will collection the Democrat- son who is related the voter ic Party get-out-the-vote to retool its ef- blood, marriage, legal adoption or forts, example by increasing for voter guardianship. transportation polling locations re- and (d) scripts a vising training member” means early “Household focus on This, turn, in-person voting. require same will person who at the res- resides party to divert from projects resources idence as the voter. promotion like direct candidate more 16-1005(H)-(I). Thus, § Ariz. Rev. Stat. to ensure that voter outreach are this amendment to 16-1005 makes section early casting in person either ballots or felony parties early third collect mailing their ballots time. ballots from voters unless the collector exceptions. falls one of id. many into See B to election prohibition apply does not in April sued Arizona4 Feldman such, acting acting mail officials as carriers '(1)' §of alleging: Voting 2 of a violation such, any family members, any persons as H.B. 2023 n Rights account dis- Act on the same who reside at as the residence impact opportuni- parate adverse voter, caregivers, any person or defined Americans, ties Hispanics, African provides who or medical health care assis- (2) Americans,- equal a denial of Native in a resi- range tance to voters adult unjustifiable through burdening protection 16-1005(I)(2). Id. facilities. dences vote, (3) equal right denial provide H.B. 2023 does not ballots treatment, (4) disparate protection through collected violation this statute are First Amendment a violation of disregarded in the final disqualified association, (5) a viola- to freedom tally. Fourteenth First and Amend- “fencing out” of Demo- through the enactment, ments third-par- Before H.B. 2023’s cratic voters. ty early ballot was available collection prospective voters as an additional and June, prelimi- for a moved Feldman .In submitting convenient means ballot. It prohibiting . enforce- nary injunction important part was also an of the Demo- briefing, 2023. After full ment H.B. of. get-out-the-vote strategy Sep- cratic Arizona. the motion on district court denied ground least Demoerat- on the that Feld- Since at the Arizona tember below) (defendants appellees Maricopa County 4. The here Purcell Recorder Helen Office; Secretary the of State's Ari- Arizona Director Karen Osbourne in Elections Reagan Secretary zona of State Michele Attorney Gen- capacities; and official Maricopa County capacity; her official capacity. Brnovich in eral Mark his official Supervisors; of the Mari- Board of members intervenor-defendanl/appellee is Ari- County copa Supervisors Denny Board convenience, Republican Party, For we zona Kunaselc, Chucri, Barney, Andy Clint Steve appellees to the where refer "Arizona/' Hickman, and in their official Steve Gallardo ,appropriate, otherwise use their and individu- capacities; Maricopa County Recorder al names. Maricopa Department; County and Elections Cottrell, on the mer- Rockies v. 632 F.3d likely naan succeed was 2011). (9th Cir. therefore her claims and had its irreparable not shown likelihood also emergency filed an motion Feldman claim, § to the the district harm. As injunction pending this court for an eviden- totality court reviewed expedited appeal. for and an On appeal of a no evidence tiary record and found 14, a panel motions denied the October minority and disparity between cognizable request, granted but former latter. court non-minority voters. The district simulta- parties were directed to.file neous, unlikely succeed briefs October and the that Feldman was merits held argued orally on October 19.5 appeal claim be- was on Fourteenth Amendment her 2023 n voting was on cause H.B. burden II justified inter- and minimal State’s jurisdiction this over interlocu- We have voter fraud preventing ests absentee pursuant to 28 tory appeal U.S.C. Feld- As to perception and the fraud. 1292(a)(1). appeal On an from the denial claims, the dis- man’s First Amendment injunction, we do not preliminary of a re- collecting that ballots trict court held underlying of the merits claims. view if activity that even expressive not an and Project Registration Educ. v. Sw. Voter were, interests regulatory State’s (9th 2003) Shelley, 344 F.3d Cir. justify slight burden were sufficient banc) curiam). Instead, (en (per re- “[o]ur imposes. H.B. 2023 The district court deferential,” id. and is limited view unlikely was ruled Feldman likewise order must affirm the district court’s un- partisan fencing her claim. to succeed district court its less the abused discretion. timely of interloc Feldman filed notice Am., N.A., 408 Hendricks v. F.3d Bank of day utory the same appeal (9th 2005). 1127, 1139 Cir. order, entered a few district analysis pro- abuse-of-discretion Our motion emergency filed later she days v. steps. See Gilman Schwar- ceeds two court to stay in the its order (9th zenegger, 1105-06 Cir. 638 F.3d pend enjoin the enforcement of H.B. Hinkson, 2011) (citing United States v. ing appeal. The district court noted (en (9th 2009) banc)). Cir. injunction for obtaining an the standard one, step we ask whether the district At as the stan pending appeal same ruling on an court “based its erroneous obtaining injunction a preliminary dard law,” Bay Area Addiction Re- view the motion denied because Feldman Treatment, City search & Inc. v. Anti- likely suc had not shown she was (9th och, 1999), Cir. 179 F.3d merits, Res. ceed Nat. Winter interpreta- reviewing the district court’s Inc., Council, 7, 22, 129 underlying novo, legal principles de Def. (2008), 365, 172 or that “there L.Ed.2d Shelley, 344 F.3d at 918. thenWe ask questions going the merits” application are serious the district court’s whether sharply of hardships tips legal illogical, implausi- and “the balance standard was ble, support plaintiffs in the favor.”' All. Wild or otherwise without infer- appeal subject separate appeal, pedited and will of a In addition to Feldman deny ed of the district orders another court’s disposition. Sec'y See Feldman v. Arizona separate preliminarily enjoin motion 16-16865, Office, No. State’s challenged practices in the other election 2016 WL appeal similarly complaint. been ex That has from may enees that be drawn the facts preliminary the merits —then a injunction Hinkson, record. may 585 F.3d at 1262. still if issue of hardships the ‘balance findings “We review of fact for tips sharply plaintiffs favor,’ clear er in the Offshore, Greenpeace, ror.” Shell Inc. v. the other two Winter factors are satisfied.” Inc., Cir. Offshore, Shell is, 709 F.3d at 1291. “That long as got “[A]s the district court questions going the law ‘serious to the merits’ and right, will not simply be reversed be of hardships tips balance sharply appellate cause the court have ar plaintiff would towards the support can issuance rived at a if it applied different result had of a preliminary injunction, so long as the the law to the facts of the (quot plaintiff case.” Id. also shows that there is a likeli City Thalheimer v. Diego, San of irreparable injury hood and that 1109, 1115(9th 2011)).6 F.3d injunction public interest.” All for Rockies, the Wild at 1135.

A preliminary injunction is “an extraor- dinary remedy may only be request awarded When faced with a to interfere upon showing plaintiff a clear that the is with a state’s “just election laws weeks Winter, election,” entitled to such relief.” before an federal courts are “re 22, 129 S.Ct. 365. standard to quired weigh, obtain to the addition harms accordingly such relief is stringent: “A upon attendant or issuance nonissuance plaintiff seeking preliminary injunction injunction, an specific considerations must likely establish that he is Gonzalez, succeed election cases.” Purcell v. merits, likely 1, 4, on the that he is (2006) to suffer U.S. 127 S.Ct. 166 L.Ed.2d 1 irreparable curiam). harm in prelimi- the absence of (per These considerations often relief, nary that the balance equities tips counsel legisla restraint. the context of r favor, injunction his that an redistricting, is in the tive example, fo the Su public interest.” Id. at preme S.Ct. 365. A long has cautioned that Court plaintiff showing must make a as to impending each “where an election is imminent elements, although these our “if machinery circuit and a already State’s election plaintiff can progress, equitable show that might there are ‘seri- considerations questions going ous to the justify withholding merits’—a less- a court in granting showing er than likelihood of of immediately success on relief .(cid:127) effective even determinations, suggests bility 6. The dissent that the district court's but based instead are findings weight factual physical documentary entitled to less or evidence and in- (citations here "the because con- court did not from other omit- ferences facts.” ted)). any evidentiary hearings duct fact-finding resolve dis- It is immaterial puted parties’ injunction factual issues” and "the sub- preliminary' occurred here at the 52(a)(6) stage; were applies-to missions affidavit.” See Dissent Rule its terms all fact, findings necessarily 396 n.l. Our review of factual findings, how- includes ever, change findings does not based on the nature of of fact that "the court must ... fact, "Findings support interlocutory whether evidence. state” to denial of evidence, 52(a)(2). injunction, based on oral or other must not see Fed. R. Civ. P. See Anderson, clearly aside set unless erroneous.” Fed. R. 470 U.S. at 105 S.Ct. 1504 52(a)(6); ("Rule 52(a) City exceptions Civ. P. see also Anderson v. ‘does not make 564, 574, City, categories purport Bessemer 470 U.S. 105 S.Ct. to exclude certain of factu- (1985) ("Where findings obligation 84 L.Ed.2d 518 there al from the evidence, permissible appeals accept findings are two views of the a district court's ” clearly (quoting factfinder's choice between them cannot be unless erroneous.' Pull- Swint, 273, 287, clearly erroneous. This is so even when the man-Standard (1982))). findings district court’s do not credi- rest on 72 L.Ed.2d 376 disfavored.”); Ne. strongly Ohio Coal. are existing apportionment scheme

though the Blackwell, v. F.3d Sims, Homeless 467 v. Reynolds 377 invalid.” found 2006) (6th part 999, 1012 (vacating 1362, Cir. 585, 12 L.Ed.2d 533, 84 S.Ct. U.S. “need restraining order that temporary Supreme Court (1964). Similarly, the 506 process lessly creates electoral of disorder new printing to order declined has es”). even date” where at a “late ballots unconsti have existing ballots were held-to HI candidates. certain

tutionally excluded 23, 34, mind, Rhodes, . principles 89 we turn these v. With Williams court’s (1968). of the also to our district order 21 L.Ed.2d 24 We review S.Ct prelimi- motion for a grounds to interfere denying Feldman’s equitable on declined of fast-approaching against the enforcement injunction nary the mechanics with Bullock, appeal, argues Feldman 697 F.3d v. H.B. elections. See Lair 2023. On. concluding (9th 2012) (staying 1214 Cir. dis (cid:127)that the district erred on unlikely imminent her injunction succeed “given trict court’s she was Act, election”); Amend- Shelley, Voting Rights Fourteenth nature ment, an Amendment claims.7 We enjoin First at 919 imminent (declining turn. election). arguments not alone these recall consider each And Abbott, See, v. 830 Veasey doing e.g., so. A 2016) (en (5th banc) Cir.

F.3d 243 an fashion (“[T]he court should claim Feldman’s We first consider i,ts with find remedy Voting Rights in accord 2 appropriate 2023 H.B. violates remedy however, any ings; provided, Act. not after the be until

will made effective 1 election.”); Veasey v. November 2016 Per 2014) (5th (stay ry, F.3d rights Cir. “Inspired to action the civil impor injunction light an Voting “in movement,” Congress enacted quo maintaining tance improve the status enforcement Rights Act of 19.65 election”); Shelby of an eve v. Colon-Marrero Amendment.8 Fifteenth — (1st U.S. -, Conty-Perez, Holder, n.9 County v. F.3d 2012) (2013). plain (noting 2619, 186 Cir. where Section “even L.Ed.2d making tiff has likelihood suc from prevented demonstrated a of the Act states cess, un issuing injunction voting procedures of an changes eve certain “preclear extraordinary remedy changes obtained election is an less those ance,” approved by own”); meaning Emps. they Union were risks of its Serv. Int’l or a court Husted, General Attorney Local either the 2 of the 2012) (“As rule, Section judges. Id. at 2620. general last-minute three any enacting from Act states forbade all changing procedures injunctions abridged by or vote denied claim that shall 7. Feldman H.B. does raise the was intended United States or State account invalid because suppress partisan color, or race, affiliation votes based on previous condition of servi- i.e., partisan viewpoint, theory prohibited tude,” Congress to enforce the and authorizes fencing. legislation.” "by appropriate provision Const, XV. amend. provides Fifteenth Amendment States to of the United *'[t]he citizens “standard, practice, procedure ... im lenges. practices or that denied citizens the vote, posed opportunity or or deny abridge literacy ... such as applied tests. right any of of citizen the United amendments, As amended the 1982 on States to account of race color.” vote or 2 Voting of the Rights pro- Section Act (quoting Voting Rights at 2619 Act of Id. vides: 1965, 2,§ 79 Stat. § 10301. Denial or abridgement of right to vote on account of race or color passage “At the time of of the Vot- voting qualifications through prereq- or 2,§ Rights 1965, Act of unlike other uisites; of establishment violation Act, provisions provoke sig- of the did not (a) voting qualification No or prerequi- Congress nificant debate in it was because standard, site. to or practice, or largely of viewed as a restatement procedure imposed shall be applied or Fifteenth Amendment.” Chisom v. Roem- by or any political State subdivision in a er, 380, 392, 2354, 501 U.S. 111 S.Ct. 115 , manner which in a or results denial (1991). 1980, L.Ed.2d 348 of plurality In abridgement citizen Supreme Court held the Fifteenth of the United States to vote account Amendment, and Voting therefore the color, or or race contravention Act, Rights were violated if there was guarantees set forth in section intentional discrimination account of 10303(f)(2) title, of this provided Bolden, City race. 55, Mobile 446 U.S. v. (b). subsection 60-62, (1980) 100 64 L.Ed.2d 47 S.Ct. (b) (a) A. violation of subsection is es- (plurality opinion). if, totality tablished based on the of cir- cumstances, it is shown Bolden, political that the response In “Congress sub processes leading to nomination or elec- stantially § revised 2 to make clear that a or political tion the State subdivision proved violation by showing could dis equally open to participation by criminatory alone effect to establish as protected members a class citizens legal the relevant standard the ‘results (a) by subsection in that its members by applied Supreme Court in test/” opportunity .have less than other mem- Regester, v. 412 White 93 U.S. S.Ct. bers of the to participate electorate (1973), 37 314 other L.Ed.2d political process and to elect repre- federal courts Thornburg before Bolden. v. of their sentatives choice. 30, 35, 106 Gingles, S.Ct. 92 U.S. (1986). § 10301. Opinions L.Ed.2d 25 U.S.C. decided before Bolden had “vote addressed dilution” Supreme Court interpreted this lan claims, is, challenges practices guage Thornburg v. Gingles, diluted a minority group’s voting power. Gingles 25. L.Ed.2d Reno, 630, 641, See Shaw v. 113 explained violation, that to make out a (1993). S.Ct. 125 L.Ed.2d 511 a plaintiff must show “under total 2,§ amending Congress “prohibit circumstances, acted ity of the elec challenged legislation in the results dilution procedure law or had the effect minority voting strength, regard- group’s denying protected minority equal legislature’s less (empha- intent.” Id. participate pro chance the electoral omitted); Gingles, n.8, sis see also 478 U.S. at at 44 cess.” Id. S.Ct. 2752. 47-51, 106 ap- Section also “totality the circumstances” includes claims, plied to “vote denial” meaning chal- factors that the from cases Senate derived id.9 As Veasey abridged account race.” v. Bolden. See summa before decided Abbott, Court,- (emphasis § 2 omit of a 830 F.3d at essence “[t]he rized law, ted); Party also Democratic prac electoral see Ohio a certain claim that (6th Cir.2016).10 Husted, Re tice, interacts with social structure Fifth, Fourth, cently, to the Cir inequality cause and Sixth historical conditions Circuit) (and, in by part, black and the Seventh opportunities enjoyed cuits in the framework, a repre adopted two-part preferred have based to elect them white voters 47, 106 Supreme § text of 2 and the 2762. the sentatives.” S.Ct. Id. Gingles. is as guidance Court’s test many analyzed Although courts have follows: claims, little is authori- vote dilution “there ty on the proper test to determine whether ^[1] [T]he challenged standax-d, practice, impose or or a right procedure been denied must discrimina to vote has the Gingles, policy underlying explained the the state or the relevant factors whether As 9. political voting include:' use of such subdivision's voting, any history qualification, prerequisite to or stan- of dis- the of official 1. extent dard, political practice procedure in the state or subdivi- or is tenuous. crimination right 36-37, (internal of the members sion touched 478 U.S. at 106 S.Ct. 2752 vote, minority group register, omitted). to to or of the quotation Supreme marks participate democratic otherwise to in the another factor Court has stated relevant process; justification State's for its electoral ‘‘[a] voting in elec- 2. the extent which system.” Lawyers' Attorney Ass'n v. Houston political or tions state subdivision is of the Tex., 419, 426-27, 111 Gen. 501 U.S. of racially polarized; (1991). 2376, 115 L.Ed.2d 379 political or 3. the extent to which the state unusually large has used elec- subdivision occur, instance, 10. Vote dilution can districts, majority requirements, tion vote practice reducing where a the effect of or has provisions, anti-single shot or other nullifying ability, "minority voters' as a may practices procedures or enhance choice,” group, to elect of their the candidate against opportunity discrimination Shaw, (inter S.Ct. 2816 minority group; omitted), quotation typically nal marks and slating process, if is a there candidate arguments different and evidence involves group minority whether members of the instance, than in vote claims. For Gin- denial process; have been access to that denied gles explained prove that to that use multi- to which members extent of the oppor gives member less districts minorities minority group political in the state or sub- tunity representatives to elect of their choice division bear the effects discrimination 2, plaintiff generally § would violation education, employment such areas as health, and (1) minority have to demonstrate: ability partici- hinder "sufficiently large group at issue is both and pate effectively process; political in the major geographically compact to constitute a political campaigns whether have been single-member "politi ity in district” and ap- or subtle characterized overt racial cohesive,” (2) cally major that "the white peals; ity sufficiently bloc votes as a to enable it—in to which extent members circumstances, special such absence as minority group public elected been minority running unopposed— candidate jurisdiction. office in thé usually minority’s preferred to defeat the can in some Additional factors that cases have 50-51, didate.”. U.S. at 106 S.Ct. 2752 probative part plaintiffs' value had (citations omitted). gen would Such evidence evidence to establish a violation are: erally applicable not be claim that significant re- whether there lack of a specific practice unequally sponsiveness burdens the part on the of elected officials (a political participate process particularized to the needs of the members in the vote claim). minority group. denial tory protected plaintiff of a that a burden members vides can establish viola d class, 2(a) § meaning pro members if “base totality of. circumstances,” class have less opportunity “political tected processes par leading other members of the electorate to to nomination or ticipate political process or political equal State subdivision are'not representatives -choice, ly open elect of their to participation” by of a members protected [and] class “in that its members have opportunity less than other members in part .[2] must [T]hat burden participate the electorate to in the political social histori- caused linked to process elect representatives cal currently that have or. conditions 10301(b). their choice.” Id. produce against discrimination members protected the class. In interpreting prong, this first we have League v. North held that “a showing Women Voters N.C. bare statistical of Carolina, (4th 2014); disproportionate impact F.3d 240 on a 769 Cir. racial minori- ty § Abbott, 244; satisfy does not 2 Veasey -inqui- the ‘results’ v. 830 F.3d at Ohio River, ry.” 637-40; (emphasis Salt 109 F.3d at 595 Party, Democratic 834 F.3d at omitted). Rather, Walker, 2 plaintiffs v. “Section Frank must 768 764-66 F.3d (7th a causal 2014) show connection between the chal- (adopting Cir. the test “for the lenged voting practice prohibited and [a] argument”). sake discriminatory explained by result.” Id. As agree framework, two-part We with this Circuit, the “challenged Sixth a standard which is Supreme consistent with Court practice causally or contributes to al- the precedent, precedent, our and with own leged discriminatory impact by affording § the text of 2. Under a prong, the first protected group opportunity members less plaintiff challenged show that the must participate to in political process.” the voting practice in members of a results Ohio Democratic Party, 834 F.3d at 637- minority protected group having less op 38. portunity than other the members in participate political electorate to the prong The second “draws the Su Arizona, process. preme guidance Gingles,” Gonzalez v. 677 Court’s in F.3d Veas (9th 2012) (en banc) Abbott, ey 406 Cir. (citing v. at which ex F.3d 2(b) § v. Project Agric. language River the plains requiring Smith Salt Im a Dist., 586, plaintiff & Power to show a Act provement F.3d violation 1997)). totality “based language This “encom circumstances.” 10301(b). § passes 2’s definition of what Under this kinds U.S.C. second Section deny abridge right prong, plaintiff or to burdens must show Veasey Abbott, practice vote.” challenged at 244. interacted racial F.3d with 2(a) prohibits “to political Section a state or discrimination cause an inequality [minprity] imposing any “voting opportunities enjoyed by subdivision from qualification voting” [non-minority] prerequisite or or voters to elect them “standard, practice, procedure” preferred representatives.” Gingles, other or 2752; way abridge a that “results or see Gonza in a denial U.S. at S.Ct. also Gonzalez, lez, ment” U.S. citizen’s to vote on 677 F.3d at 405-06. In we race, color, account of or membership “a did have occasion reach this second no language group,” step plaintiff because the minority U.S.C. had adduced 10303(f), (b).” § provided “as of a causal subsection evidence connection between 10301(a). § (b), turn, pro challenged photo dispro- Id. ID Subsection law and a past present of the practical on minorities. 677 evaluation burden portionate process is reality,’-.;. political no plaintiff evidence whether adduces If 407. (quot- Id. open minority voters.” places equally challenged practice bur that the 79, 106 Gingles, that causes protected minorities den claim, § 2 prong than other opportunity At the second have “less them participate district court must make “ultimate electorate members whether, totality of the process represen finding and to elect under the political choice,” circumstances, challenged practice vio- 52 U.S.C. tatives § Gonzalez, 10301(b), no 406. § there is violation F.3d at This lates 2.” GJI challenged practice of fact that finding” question or not” the ais “whether “ultimate history of discrimina “interacting with error.11Id. for clear we review test, Gon prong the second tion” at However, agree zalez, F.3d at § 2 that to show a our sister circuits claim, in a vote denial This raises case

violation, establish plaintiff must H.B. 2023’s re claims that that Feldman imposes dispropor challenged practice third-party on the use of certain striction compared on minorities burden tionate abridges minori collectors denies non-minorities, challenged and that to the first As opportunity vote. ties’ condi and historical social interacts with claim, argues § that a prong Feldman to produced discrimination tions that have group members minority H.B. 2023 caused to fewér opportuni minorities have cause participate to opportunity to less have in the electoral participate process. ties to than process non-minorities. the political League of N.C,, Voters See Women multi-step on a this claim bases Feldman Abbott, at 240; F.3d Veasey F.3d at First, points to Feldman evi argument. 244; Party, at 834 F.3d Ohio Democratic are in the record that Aiinorities dence 637-40. statistically likely than non-minorities less vehicle, likely a are more to to have access legal

The district court’s determinations En education and novo, Gonzalez, to have lower levels F.3d are de reviewed non-minorities, proficiency are glish than court’s to “the at but defer district we problems health likely to from re more suffer fact-finding capabilities,” and superior non-minorities, likely to error, more than are findings for its clear view factual non- than financial analyzing difficult situations River, 591. In Salt minorities, non- likely claim, and are more than § the district prong the first a own to rent rather than 'houses for minorities primary responsibility court has the them, them in turn makes more searching a determining ‘upon “based stage equally applicable merits dispute under tion at 11. The that dissent does See, e.g., stage. preliminary injunction at thé Gonzalez, question is fact. one ultimate v, Hubbard, 775 LLC F.3d Pom Wonderful Yet, argues that Dissent at 396 dissent n.l. 2014) (holding, in an of the likeli court’s assessment district denying motion a appeal from order a on of this hood the merits ultimate success error preliminary injunction, that clear novo question should be de because reviewed applies district deter standard to court’s stage, preliminary injunction are we at the confusion, concerning likelihood mination question question is mixed la a fact, question of law and because a mixed w disagree. We Our See at 396 n.1. fact. id. was previously this standard held had ap error the mer conclusion that clear standard such determinations applicable to trial, stage). plies reviewing its court's determina likely Second, or showing move homeowners. data statistical 2023’s that H.B. argues she precluding that each of these differences rule the use of certain third- party minorities disparate between and non-minorities ballot collectors had im rely on pact compared shows-that minorities must on minorities impact ballot on parties-more collection third than non- non-minorities. The district court deter , law, minorities because minorities have less that- as a matter of mined such data ability to make use of was necessary § other alternative in order establish a (such voting by means of dispute mail or violation. does not Feldman Feldman, person). According this evi she provide any did not on direct data collectors,12 dence shows the burdens H.B. use of third-party but fall heavily minorities argues necessary more on than non- such data is not to show minorities. disproportionate minorities, Feldman further contends that on burden § she so prong ruling satisfied second the district court’s by introducing test contrary legal error. substantial evidence eight supporting of the nine Senate Fac § not require quanti While 2 itself does tors. evidence, past suggest tative cases rejected court this argu necessary district typically such evidence es ment prong at the first 2 test tablish a disproportionate burden mi its participate based determination Feldman opportunity norities’ in the See, failed e.g., Veasey process.13 to show that H.B. 2023 will v. Ab political cause bott, protected less minorities to have electoral (noting at 244 that “courts opportunities than analyses non-minorities. The regularly utilize statistical to dis dis trict court its on both discriminatory based conclusion cern whether a has Frank, per legal impact”); 752; se rule review of Gonza 768 F.3d at lez, First, Indeed, evidence. held that 677 F.3d at 405-07. .we any to provide quantitative Feldman holding failed of unaware a vote denial case that organizations 12. collecting appear Feldman contends that her failure to ad- ballots to be duce that evidence ballot collection restric- gather position the best to such informa- .in place tions a heavier on burden minorities tion. than non-minorities should excused be- early track how cause failed to ballots appears to the 13. conflate district dissent however, plaintiff, are returned. As Feldman quantitative rule court’s that data necessar obligation has the of carrying her burden of y prong § of 2 violation first establish the proof. Gingles, See 478 U.S. at post-election with a rule vot that actual Moreover, 2752. record indicates that § 2 data can establish a violation. Dissent equal ability generate had Feldman 401-02, sug has .the at Circuit Third While -required Early data. have been ballots collect- prove gested plaintiffs that that chal must surveys ed in Arizona since at and least lenged practice impact minority has an composition determined the racial could have turnout, City voter see v. Phila. Ortiz Office of rely of voters who on others to collect their Div., City Registration Voter Comm’rs Moreover, early ballot in Arizona. the Arizona 1994), (3d F.3d Cir. district court collecting Party early Democratic admits so, not do other circuits evaluat did and "integral part votes been an of the Ari- has pre-election challenges considering ed sta Party’s get-out-the-vote zona Democratic voting registration, regarding tistical evidence strategy” at least Neither the Ari- since elections, prior voter Ohio Demo any Party organi- turnout nor other zona Democratic 638-40, Party, cratic plaintiff explained why and the has F.3d zational it could ID, possession qualifying Veasey compiled not have data voter race v. Abbott, utilizing given ballot collection that the at 250. F.3d satisfy prong, first To Feldman ad- placed dispropor challenged practice minority- categories evi- several different protected duced burden on tionate declarations, dence, including individual other leading opportunity to “less and from the De- history, files participate legislative electorate members process partment Justice. represen and elect political § 2 of their choice” under without tatives First, the record the declara- includes quantitative or statistical data. such of Arizona Democratic lawmakers tions 10301(b).14 did Notably, Feldman U.S.C. representatives organizations that compan statistical evidence in our present in pri- returned ballots have collected and case, supra ion discussed n.5. generally These declarations or elections. issue, communities legal members need not this state resolve We rely on however, regard- collection despite ruling they have assisted its because parties. The district quantitative lack services third ing the of statistical this evidence, testimony because proceeded court discounted provide com- not declarants did all the record the evidence review minority had communities parison between that Feldman rested its conclusion non-minority § 2 on communities. The rec- prong of the first satisfy failed to finding. majority supports did ord ground the alternate Feldman focused efforts and impact- the declarants burden of H.B. 2023 show experiences minority obtained their minorities than non-minorities. more ed superior None these declarants communities.15 Deferring “the district court’s River, 109 on mi- compared impact H.B. 2023 fact-finding Salt capabilities,” holding compared norities as non-minorities. conclude that this con- two of the declarations made clearly While is not erroneous. instance, Randy vote 15. For Declarant Parraz stat- on two out-of-circuit 14. Feldman relies organization, for a Better ed that his Citizens argument support her dilution cases to Arizona, get-out-the-vote efforts "focuse[s] ap- required statistical evidence helping voters.” Ian low-income Latino Gingles. laid plication of factors out non-parti- Danley’s states declaration that his See, Colorado, e.g., 97 F.3d Sanchez Arizona, organization, typically One en- san 1996); Clay Cir. Jenkins v. Red 1320-21 neighborhoods gages with voters that are Educ., Consol. Sch. Dist. Bd. of heavily Joseph Declarants Larios Latino. (3d indicate But these cases Neigh- Chapman for the Ken work Center minority that only that voters claim when Leadership, which its efforts borhood focuses opportunity bloc will defeat their racial African American and Latino "low-income choice, they may of their to elect a candidate neighborhoods.” The Arizona Democratic rely range prove to that on a of evidence repre- provided lawmakers who declarations minority preferred particular is the candidate predominately who are eth- sent constituents 1320-21; Sanchez, at candidate. See 97 F.3d example, Representative For nic minorities. Jenkins, 4 1126. Neither case address F.3d at Gallego "represent^] approximately Ruben prac required to that a es the evidence show constituents, 763,000 nearly of whom 80% having protected less results in minorities tice ethnic minorities.” State Senator Martin are Quezada pro political opportunity participate in to 213,000 approximately "represent[s] League See Wom cess than non-minorities. constituents, nearly of which are ethnic of 80% 240; N.C., Veaseyv. 769 F.3d en Voters Gallego, Mayor Vice minorities." Kate n.10, Abbott, supra Phoenix, noted 244. As represents City a district that may prove required per- to heavily highest evidence different and has the "is Latino prove centage denial to a vote dilution vote claim than African Americans —15%—of claim. district Phoenix.” elusory- statements that H.B. 2023 “dis a disproportionate H.B. 2023 has proportionately protected impact on impacts” minor of the Tohono members O’od- ities, ham it is error for compared not clear the district Nation non-minorities statements, court to who also live in rural discount such communities.16The where n court provide rejected the declarant not district Feldman’s did ar- basis also Enters., Herb gument Reed provided by the conclusion. declarations Ser- Cf. Inc., gio Arellano, Mgmt., LLC Fla. Entm’t President the Tucson 2013) Chapter of Republican the Arizona Latino (indicating Association, Dang, and Kevin President district court rely “unsup should Arizona, Community Vietnamese ported ad- conclusory statements” when that “minority disproportion- mitted voters finding of a part preliminary facts as in ately rely on collection.” The district junction- analysis). court these concluded that declarations in- Other declarations submitted the dis- dicated only dispropor- that minorities are trict generally court stated ballot col- tionately being taken vulnerable advan- lection parties elderly third benefits tage byof they ballot collectors because voters, voters, voters, forgetful homebound English. often do not understand This con- voters, undecided from rural clusion was not error. clear areas, but no the court found evidence that addition, multiple to the declarations categories these of voters were likely more above, described legis- Feldman submitted to be minorities than non-minorities. testimony lative from the debates on H.B. Again, clearly finding is erroneous. showing that number lawmakers instance, For court the district stated expressed that H.B. concerns 2023 would provided while Feldman had evidence that ‘ communities, impact minority rural com- the rural communities Somerton' and munities, families, working elderly. and the Hispanic San Luis were 95.9% and 98.7% This to compare evidence likewise failed or Latino home mail delivery, and lacked minority non-minority communities provide she did not evidence about home communities. delivery mail who non-minorities reside rural City, communities Colorado Finally,' the considered the Fredonia, David, Quartzite, St. Star Val- Department regarding files Justice’s ley, Wickenburg 99.5%, (a that are prior evaluation of S.B. 1412 Arizona bill 89.1%, 92.5%, 91.4%, 92.1%, and 90.5% restrictions) proposing ballot collection white, respectively. Similarly, while purposes determining whether the bill record shows that the Tohono § O’odham was to preclearance entitled under. 5 of service, Nation delivery lacks home mail Voting Rights Act.17The file contained Feldman point telephone does not evidence summaries of show- conversations be- 10301(b) emphasizes (emphasis 16. The dissent that the evidence choice.” 52 U.S.C. add- ed). regarding delivery regarding the lack of mail service Without evidence non-minori- ties, required by § comparison the Tohono Nation the 2 O'odham and the rural cannot and made. communities of Somerton San Luis was not at contested. Dissent 403-04. the is- But enactment, minority sue is not 17. At the time 1412’s whether voters have limit- of S.B. Ari- service; rather, delivery subject ed access to mail the zona was still to Section 5 of the Act, Voting Rights required issue is H.B. due to minorities Arizona to whether opportunity preclearance "have than Department less other members of receive from the of participate the'political the in convened in electorate to Justice or a federal court the process representatives and to of United States for the District of elect their District Court n.8, attorney Proof of a causal of at 106 S.Ct. 2752. Justice Department tween voting challenged connection between ballot collec- various about individuals is “cru- prohibited of and a result practice in Arizona. these practices None Gonzalez, (citing at cial,” F.3d Salt comparison of the provide a summaries S.B, 595), River, non- at and Feldman F.3d of 1412 minorities effect to no the restriction points a sum- that minorities. claims that evidence Feldman mi- collection causes third-party of a with then-Arizona ballot mary phone call to vote opportunity norities have less Amy shows Bjelland Elections Director Indeed, although H.B. targeted Arizona than non-minorities. legislators that S.B. first three in for all but the Hispanic The 2023 was effect communities. district at early voting Primary of for the Elec- court, however, reasonably days this interpreted tion, not testi- stating impe- the record does include summary that phone as ability mony minority voters that S.B. 1412 accusation tus was Luis, political process was participate in the predominately in voter fraud San inability a third- to use Hispanic portion in the southern affected area Arizona, this at ballot collector. party was aimed S.B. view, fraud, declining in Bjelland’s clearly that in err

sort make did not (i.e., due prevalent urged by inference Feldman fraud more voter was status, they closer to to minorities’ socioeconomic living border because individuals corrup- likely impacted by opportunities to have fewer are more were border participate to exist than non-minorities to voting tion and fraud claimed process they if not cer- political could use Mexico. collectors) in third-party tain dis- appeal, argues On that the Feldman infer- supporting absence evidence accept it not trict court erred because did ence. met the argument her that she multi-step rejected argument § similar prong of Gon first based evidence We case, dispa- plaintiff certain As this Gon socioeconomic circumstances zalez. minorities, impact argued requiring prospec rately disparate this zalez that a law photo of cer- impact with a lack tive voters- to identification would combine obtain they polls ballots at violat third-party ballot collectors to lessen before cast tain signifi § political statistically minorities’ it had a opportunities because ed impact on reject argument. disparate We this Feld- Latino voters. process. cant support argument, To man’s evidence in the 406. this differences socio- 677 Ari non- “of- plaintiff presented of minorities and evidence economic situation satisfy prong general history minorities does the first zona’s discrimination § 2 existence of racial against test because does not show Latinos and the protected minority ly polarized voting.” Despite Id. at H.B. 2023 407. causes a discrimination, general history other group to less this opportunity rejection court’s participate members the electorate affirmed the district claim, plaintiff political Gingles, unable process. See because restrictions, implementing but a new 1412’s ballot Columbia before did collection S.B, standard, practice, procedure. complete 52 U.S.C. be- its evaluation Attorney sub- The Arizona General legislature repealed bal- cause the Department of Justice mitted S.B. 1412 part an omni- lot-collection measure preclearance. Department of Justice bus bill in . S.B. requested information about additional

385 produce photo ing to identifi to evidence-that consider whether H.B. 2023 inter cation law to caused have less with racial acted discrimination to minorities cause a to in opportunity participate political discriminatory result. See 677 F.3d at Id,.; Frank, process. F.3d see 768 at also 407.19The district court’s conclusion that (holding photo that a identification § 752-55 “(1) H.B. 2023 did not 2 was not violate disparate on impact law which a mi (3) had illogical, (2)'implausible, or sup without § plain did not 2 norities violate because port may inferences that be drawn from tiffs to failed show that the law caused record,” had Hinkson, in the the facts 585 F.3d result).'For discriminatory (internal rea same quotation omitted). at 1262 marks son, regarding Feldman’s the so Therefore, evidence we hold that the district court cioeconomic of minorities is insuf situation did not abuse discretion finding Feld- ficient in the absence evidence that H.B. unlikely man to on Voting succeed her 2023 caused to minorities have less oppor Rights Act claim.

tunity pro in the participate political B

cess. Feldman also contends that the short, court clear the district did not in concluding erred that her facial err in ly concluding that Feldman adduced H.B, on challenge showing constitutional no evidence H.B. 2023 would grounds was to succeed on unlikely impact have on different minorities - lay merits. first out non-minorities, analytical We' impact than the let challenges for framework facial to voting impact alone would result -less laws under the Fourteenth and First opportunity participate minorities Amendments, and then consider political non- Feldman’s process compared challenges.20 minorities.18 Because court found that § Feldman’s 2 claim failed at the first Gonzalez, prong, as in the district court no obligation

had to reach the grants second The Constitution the States a prong, did not power, prescribe ‘Times, and therefore err dedin- “broad argues plaintiffs 18.The have dissent once on VRA lack record violations is evidence voters, them.”). minority established burden attributed rejoinder" “burden of placed should requires § state. Dissent at 403-04. But 19. We likewise not consider the nine fac- do merely showing 36-37, than more on mi- Gingles, burden tors set forth 478 U.S. at plaintiffs requires norities. It to establish that 106 S.Ct. 2752. opportunity minorities other “have less participate members of the electorate to 20. dissent contends "neither political process.” 10301. We plaintiffs categorize U.S.C. ñor the defendants enough plaintiff challenge that it is not challenge.” held to H.B. 2023 as facial However, showing dispro- make “a bare statistical Dissent 399 n.3. “[t]he label Reed, portionate minority”; impact on a racial rath- matters.” Doe No. v. what John er, 186, 194, plaintiffs “Section 2 must causal show a (2010). challenged voting connection between the Because Feldman's L.Ed.2d practice discriminatory prohibited re the relief that would follow—an [a] "claim River, (second barring injunction” implement- from sult.” Salt 109 F.3d at 595 added) Ortiz, emphasis (quoting beyond enforcing H.B. 2023—"reach 312); Fairley particular plain- Hattiesburg, see also of these circumstances 2009) (“[T]he tiffs," plaintiffs properly bear it is characterized as a id. case, proof challenge. VRA in a burden .and facial 386 citi other basis with equal Elections elections an holding and Places Manner ” Blum in the Dunn v. jurisdiction.” zens Wash. Representatives.’ for Senators 995, 330, 336, stein, 92 31 405 S.Ct. U.S. Republican State Grange v. State Wash. 274, is, (1972). That “once the L.Ed.2d 1184, 451, 442, 128 S.Ct.

Party, 552 U.S. electorate, is to the lines granted franchise (2008) (quoting U.S. 151 L.Ed.2d 170 inconsistent may not be which are drawn 1). 4, under Const., 1, power This art. cl. with the Protection Clause Equal regulate elections the Elections Clause v. Harper Va. Fourteenth Amendment.” “is state matched for federal offices Elections, 663, 665, Bd. 383 U.S. State process for state over control (1966). 1079, Simi 16 L.Ed.2d 169 86 S.Ct. Beaver, Clingman Id. (quoting offices.” v. larly, freedom of association “[w]hile 2029, 586, 161 581, 125 544 U.S. S.Ct. in the Amend explicitly not set out [First] (2005)). 920 neces L.Ed.2d “Governments 169, 181, ment,” James, Healy v. 408 U.S. active in structur sarily ‘must role play (1972), 2338, “the 92 266 S.Ct. 33 L.Ed.2d ” elections,’ All., Inc. v. Integrity Pub. recognized right has associate Court Tucson, 1019, 1024 City purpose engaging for the those activi- 2016) banc) (en v. (quoting Burdick protected by the First Amendment ties 2059, 433, 112 Takushi, 428, 504 U.S. S.Ct. preserv- indispensable ... as an means (1992)), prac 245 “as a 119 L.Ed.2d liberties,” ing other Roberts v. individual matter, must a substantial tical there be 609, 618, Jaycees, 104 S.Ct. U.S. 468 U.S. fair if to be regulation they elections 3244, (1984). right 462 82 This L.Ed.2d order, if some and honest and sort ability “to ... for includes the associate chaos, accompany is to- rather goals political of common the advancement Brown, v. processes,” ideas,” democratic Storer Area v. Twin Cities Timmons 1274, 730, 351, 357, 724, 94 39 Party, 415 U.S. S.Ct. New 117 S.Ct. 520 U.S. (1997), 1364, (1974). 589 and “the 137 L.Ed.2d 714 L.Ed.2d pro- ability together to band citizens However, its a state exercises when moting among the electorate candidates discharges obligation power “[t]o views,” espouse political Cal. who necessary objectives,” the achieve ‘these 567, Jones, Party Democratic v. 530 U.S. resulting “inevitably least affect[ laws ]—at 574, 2402, 120 L.Ed.2d S.Ct. 147 502 right to degree individual’s to some —the (2000). recog- Supreme long Court has right vote and his others associate ‘symbolic nized that “some forms Celebrezze, political for ends.” Anderson deserving of First speech’ Amend- [are] 1564, 788, 75 460 U.S. S.Ct. protection.” v. Forum ment Rumsfeld Therefore, (1983). the state’s L.Ed.2d Inc., Rights, Acad. & Institutional absolute, ‘subject to “power is but is 47, 65, 1297, 164 L.Ed.2d may not be exer- the limitation that [it] (2006). However, First Amendment specific ... in a that violates way cised “only protection to conduct extends provisions of the Constitution.’” Wash. inherently Id. at expressive.” S.Ct. Grange, 552 U.S. S.Ct. State if inherently expressive 1297. Conduct is (alterations .original) (quoting and ... “is intended to be communicative Williams, 393 U.S. S.Ct. While context, reasonably be under would guar- does expressly the Constitution communicative.” stood viewer right antee the to vote state and federal Non-Violence, Cmty. Clark v. Creative elections, pro- the Fourteenth Amendment instance, (1984). For burning “to L.Ed.2d 221 participate tects citizen’s Johnson, severity Texas 491 flag, the American v. “[T]he burden the elec 397, 406, 2533, imposes plaintiffs tion rights 105 L.Ed.2d law U.S. 109 S.Ct. scrutiny applied dictates (1989), by level wearing an and unauthorized 342 Party court.” Swisher, Reagan, Ariz. Libertarian v. medal, military States United v. (9th 723, 2015) 798 F.3d 729 (quoting Cir. (9th (en 299, 2016) banc), 811 F.3d Cir. 314 Cronin, 1214, (9th Nader v. 620 F.3d 1217 scope expressive conduct within the 2010) curiam)). (per Cir. “This sliding is a First Amendment. Anderson/Burdick work restrictions.” weigh 434, test’ that plying U.S. by the First the asserted imposed by “cannot be resolved mine tiffs ests constitutional (3) weigh ^[2] standard on voters challenge to ation 103 S.Ct. 1564. ‘the precise State State’s make it 112 at rights.’ ^{[3] [1]} Supreme plaintiff 789, S.Ct. 2059. magnitude ‘the applies.” ‘the character and will generally as the burden test, justifications necessary ” injury 103 justifications the election Anderson, extent a staté election law challenges Id. separate rule,’ we: interests seeks Court has Rather, Fourteenth Amendments S.Ct. (quoting balancing Burdick, “A of the burden (1) referred by any ‘litmus-paper taking against 1564). identify which valid 460 vindicate’ burden the for the “a to election laws law; (2) rights put Anderson, explained into consider more considering magnitude U.S. 504 from invalid test. This those forward the burden to as the the State’s protected law; imposed identify U.S. flexible against at frame deter inter plain must 789, 460 ap by at Ariz. ty Reagan, Norman 2016), the state has provision imposes only posing 504 Integrity state’s interest must scale test”: when ‘narrowly drawn to 460 est of terests are the restrictions.” Id. severe, state S.Ct. criminatory ers, specifically ests.” By v. U.S. regulations be Fourteenth U.S. call ‘the 698, 116 may Green contrast, but the (quoting compelling not at v. All., lesser burden State’s at at justify declined to only 788, generally Reed, 729-30)). Party, restrictions’ 434, rational L.Ed.2d 711 836 F.3d at important regulatory 838 “when a state regulation Amendment Ariz. Libertarian the “more 103 important 112 the burden importance,’” F.3d 502 narrowly advance 838 be,” S.Ct. While sufficient to S.Ct. (quoting basis require ‘reasonable, U.S. 983, by F.3d Ariz. Green Par upon (1992)). 1025, it 1564) regulations also “must be compelling demonstrating regulatory 2059 279, 289, Burdick does a rights review, 988 tailored and at 988 election that all vot- state inter imposed Anderson, the First ; Burdick, (9th (quoting see also likewise nondis- justify Party, inter- (“[A] Pub. vot- Cir. 112 im- in- is justifications. severity of the burden Burdick, scrutiny, subjected to strict see imposes election law “is factual 433, Rather, 504 at 112 U.S. S.Ct. plaintiff question bears the imposes held that statute Burdick when a “ Party of proof.” burden Democratic burden, ‘precise a limited inter- (9th v. Nago, Haw. F.3d 1122-24 may alone ests’ advanced the State” 2016) (citing Party, Cal. Cir. Democratic plaintiffs] “sufficient defeat facial [a 2402); U.S. Cty. Gonzalez challenge,” v. Marion Elec- Crawford Arizona, Bd., 128 S.Ct. F.3d U.S. 2007) (2008) (controlling (noting opinion whether an election law 170 L.Ed.2d - J.) Burdick, Stevens, imposes “intensely (quoting is an severe burden In- also Pub. inquiry”). factual See H.B, All., imposes an undue burden (upholding at 1027 tegrity outweighed by Arizona voters law, it though even municipal election n interests. the State’s asserted furthering the same interests aimed ordinances, because other municipal argues that the district Feldman fust impact beyond that might marginal have the application in its of erred court laws). by provided other this framework. Under Anderson/Burdick framework, a con district court must first Finally, Supreme Court the has warned by posed the H.B. Bur burden 2023. sider challenges infre- “are best when facial that dick, 434, 112 504 2059. U.S. at S.Ct. States, United 541 U.S. Sabri v. quent,” burden, considering care must take 1941, 608, 891 600, 124 158 L.Ed.2d S.Ct. “sheer, speculation” the that often to avoid (2004),and disfavored rea- “are for several accompanies of burdens assessment the election, particu- in in the law context sons” considering challenges. facial Wash. when 450, lar, Grange, at 552 U.S. State Wash. 454, Grange, at 128 S.Ct. State instance, “has For 128 S.Ct. 1184. 1184; Causa, see also Por Chicanos La to implement [H.B. no opportunity had 856, Napolitano, F.3d 866 Inc. 558 2023], no occasion and its have had courts Cir, 2008) (“In event, speculative, a actual to construe law the of context provide an hypothetical not possibility does context, disputes arising from electoral chal adequate basis to a facial sustain limiting a to accord the construction law lenge.”). Id. questions.” to constitutional avoid Here, clearly court did not invalidity on of rest “Claims facial often “sig finding H.B. 2023 not err that did ‘prema- the risk of speculation,” and “raise of nificantly burdens increase the usual interpretation of on the basis ture statutes matter, voting.” As H.B. 2023 an initial ” (quot- Id. of records.’ barebones factually of a than the its face less imposes burden Sabri, 609, U.S. at 124 S.Ct. 541 challenged law did in Crawford. Crawford “evi- underdeveloped When faced voter- impact considered the Indiana’s practical conse- regarding dence law, required ID voters lacked who 2023], we quences of find ourselves [H.B. ID to “the photo inconvenience sustain position Lady blindfolded Justice: making trip a to the Bureau [state holding empty stuck scales.” Ariz. Vehicles], gathering required Motor (quoting F.3d at 990 Party, Green documents, photograph” posing a Party, at Ariz. Libertarian requisite identification. obtain (McKeown,, J,, concurring)). Accordingly, at 1610. In the S.Ct. alterna U.S. asserting challenge a facial “bear plaintiffs, tive, not or a could not want voter did who magni- heavy persuasion,” burden photo provi to obtain ID could submit re- Supreme tude which Court has ballot court and “travel circuit sional weight.” give. appropriate us “to minded days offícé clerk’s execute within 1610. Crawford, 128 S.Ct. at pro accompanying the required affidavit” at ballot. Id. visional imposed that The Court law found turn Feldman’s Fourteenth We now rights.” “only voters’ burden limited that Feldman claims Amendment 1610 (quoting claim. Bur Id. 128 S.Ct. 2059); dick, court made of errors the district a number see U.S. at (Scalia, J., determining unlikely she con that id. 128 S.Ct. 1610 curring judgment). on the merits that prevail her claim burden, represent finding a limited burden such Although either. Crawford’s compels a similar conclusion here. While contends that “thousands” Feldman Ari- imposed rely ID an affir photo third-party zona Indiana ballot col- requirement possess ballots,” early in order to cast their mative voters. lection vote, photo ID 2023 limit support order to H.B. does her record not additional one of ed several claim without ballot collection methods third parties disqualified Arizona law otherwise makes avail H.B. many only third-party able: who Arizona collectors voters “would able been do qualify pre prior under statute vote elections.” delivering from cluded ballots. The district argues Feldman also the district court’s conclusion the limitation one failing erred in consider the bur for ballot collection does not alternative groups on imposed specific dens of voters “represent significant a increase over the H.B. poses 2023 more whom serious voting” clearly is not usual burdens challenge. disagree, We because the evi 198, Crawford, erroneous. 553 at 128 U.S. dence the record was insufficient for 1610; Party, S.Ct. see Ohio Democratic analysis. may a court such an con While (rejecting challenge 834 628 at F.3d sider impact subgroups, on there a.law’s Ohio’s “withdrawal of the convenience must to enable be sufficient evidence registration” and same-day holding that court “to burden quantify imposed the on “require not the Constitution does all All., Integrity the subgroup.” Pub. 836 convenience”).21 voting states to maximize Crawford, (citing F.3d at 1024 n.2 553 U.S. Further, 1610; imposed 199-203, 212-17, at by H.B. 128 S.Ct. id. at burden by (Souter, J., dissenting)); mitigated availability 2023 is the of 128 1610 see S.Ct. voting. opin- also the The lead Ohio alternative means Ne. Coal. Homeless v. Husted, (6th Cir.2016) 612, ion in 631 that the burden im- F.3d held 837 Crawford posed “miti- by (holding may permit Indiana’s voter-ID law was that Crawford that,-if gated by “weighing ‘special the the burden’ eligible, fact faced ‘a may small there photo without identification cast when pro- number voters’” ballots,” though doing “quantifiable from which arbi- visional even so re- evidence quired trips: frequency a voter to first ter gauge make two could' with which this of voters has or vote and to execute the narrow been will the second class disenfranchised,” 199, required 553 at but that U.S. 128 affidavit. become evidence, Here, 1610. at absence of such S.Ct. H.B. 2023 could most should court require trip— provisions that a make that first the- voter “consider burden (quoting place mak- on all ... Craw- vote in first instance. Because voters.”' 200, 1610)), trips represent not 553 at 128 ford, two does a burden U.S. S.Ct. (6th denied, 6, voting” banc Cir. Oct. en reh’g “over usual burdens 1610, 2016). 198, In Court Crawford, Crawford, id. at 128 S.Ct. acknowl- edged requirement ID photo reasonably district court -could determine ... on single trip required placed does “a heavier burden not somewhat here voting argues general early through 21. The because absentee "80% of dissent collection, practice early voting,” third-party it electorate uses absentee did has 2023. Feldman "has convenience and be restricted H.B. transcended evidence,” Crawford, practical necessity." provide 553 come instead Dissent "concrete so, doing of the number of at elides the at dissent U.S. S.Ct. early rely practice. this between voters who distinction absentee preventing the most effective method persons,” number of but did a limited debatable, may well be election fraud it was “not because consider burden doing so perfectly clear.” propriety magnitude possible quantify either the at 1610. Crawford, 553 128 S.Ct. U.S. class of vot on this narrow the burden Similarly, “public integri confidence portion imposed ers or the burden process independent has ty of the electoral at fully justified.” that is them ‘ encourages significance, citizen because 199-200, Accordingly, the S.Ct. process.” democratic participation in the instead considered “the statute’s Court 1610. And as the Id. at 128 S.Ct. at to all ... voters.” Id. application broad correctly recognized, district absen Burdick, (quoting 202-03, voting may particularly susceptible tee 439, 112 2059). Here, S.Ct. fraud, of it. See perceptions at least regarding assertions record includes broad Crawford, 553 U.S. collected, previously of ballots the number (Souter, J., v. dissenting); Roupas, Griffin not include sufficient “concrete but does (7th 2004); see F.3d Cir. registered evidence” of “the number Townsley, also United States specific groups or evidence voters” within court did weighing the burden permits crediting important Arizona’s not err voters, H.B. these such as whether 2023 preventing in even in interest fraud merely these voters inconvenience would that voter had absence evidence fraud voting. them from Id. at 200- preclude in the significant problem past. been a 01, paucity 1610. Given the 128 S.Ct. Crawford, noted that rec the Court “[t]he issues, regarding these key evidence such fraud ord contains no evidence in declining court did not err district occurring,” but con actually nonetheless specific groups. on focus the burden See on risk that “not is the of voter cluded 201-02, conclude id. at 128 S.Ct. 1610. We real but ... affect out fraud could clearly court did not that the district err of a election.” 553 U.S. 194- come close at im assessing identifying the burden 96, 1610; see also Ohio Demo 128 S.Ct. H.B. 2023. posed by 632-33; Frank, Party, F.3d at 834 cratic clearly court Because the district did not recognize 768 F.3d at Courts that 749-50. im determination of the err its burden not restrict legislatures need themselves vote, legislatures “permitted on posed by H.B. 2023 a reactive role: step respond potential in the to the deficiencies proceed second foresight process electoral rather framework consid Anderson/Burdick reactively.” v. Socialist Munro Work er does not Arizona’s interests. Feldman 195-96, Party, ers S.Ct. 107 dispute prevent Arizona’s interest in that (1986). 533, 93 499 L.Ed.2d ing absentee-voting maintaining fraud and public in elections are “relevant confidence Feldman also that contends interests,” Crawford, and legitimate state legal court made errors assess- several nor 553 at could U.S. weighing ing Arizona’s interests and indisputably compel she. “A has a State First, against on the burden voters. them ling integrity interest preserving argues Feldman the district Purcell, 549 process.” its U.S. at election holding “laws that do erred Cty. Democratic (quoting 127 5 Eu S.F. significantly S.Ct. increase the burdens usual Comm., 214, 231, 109 489 Ce nt. do not raise substantial constitu- U.S. (1989)). 1013, 103 It disagree. tional concerns.” We is axio- S.Ct. L.Ed.2d “While balancing matic that under a test such several of our circuits recog- sister Anderson/Burdick’s, nized, weight less “practically one it is self-evidently true” side of the scale allows scale to be that implementing designed a measure easily more in the tipped prevent other direction. voter would public fraud instill provision “[W]hen a state election im- Party, confidence. Ohio Democratic ‘reasonable, poses only nondiscriminatory F.3d at (citing Crawford, 553 U.S. at First upon 1610); Frank, restrictions’ Four- see S.Ct. rights voters, teenth Amendment (noting ‘the took “as al- Crawford important regulatory State’s interests are most self-evidently relationship true” the generally justify’ sufficient to the restric- between a prevent taken to measure voter Burdick, tions.” confidence). S.Ct. fraud and voter promoting By Anderson, 2059 (quoting asserting U.S. at in preventing interest public promoting fraud and confidence in elections, essentially the same interests as Second, argues Feldman the dis- in Crawford, Arizona bore its burden of trict court failed to consider the means-end establishing “important regulatory inter- fit prevent- between Arizona’s interests in justify ests” sufficient to the minimal bur- ing absentee-voting fraud eliminating imposed den by H.B. 2023. Accordingly, perception of fraud the one hand the district court reasonably could con- and the imposed burdens voters on the clude that Arizona’s restricting other on a means — Relying hand. vacated Sixth third-party ballot collection—matched the Circuit opinion, see State Ohio Conference desired of preventing ends voter fraud and Rusted, the NAACP v. 768 F.3d 524 promoting voter confidence the electoral (6th vacated, 2014), 14-3877, Cir. No. system.22 1, 2014), WL 10384647 Oct. Feld- argues reasons, man required that Arizona was For reject similar we Feld- “explain why particular argument restriction im- man’s that the district court is posed actually necessary,” considering id. at in not 545. erred whether Arizona’s Again, disagree. opinion “goals we in through lead have been achieved could that held a limited on less burden burdensome Neither the means.” Su- Crawford rights by voters’ imposed challenged preme required Court nor have we state by outweighed prove “unquestion- two there is less no restrictive alter- ably by relevant” imposed interests offered native the burden is mini- when state, considering the fit mal. Burdick expressly require between declined to without those interests and the voter-ID law. that imposing See restrictions minimal burdens 553 U.S. at 128 S.Ct. 1610. rights narrowly And as voters’ See tailored. conclude, argues 22. justifi- properly The dissent "the that state’s court could as Feldman’s conceded, expert voting par absentee is that cation for the law was because it weak” "[Ojccasional ticularly conducive to fraud. ex single identify example "could not of voter amples” of in fraud —as documented the Ari by fraud caused collection.” ballot Dissent at Republic by zona article cited dissent— 398. But the record does contain evidence of the risk "demonstrate that ... of voter fraud improprieties, imper- ballot such as collectors real,” 195-96, Crawford, [is] 553 U.S. at Moreover, sonating elections officials. Ari- Courts, wisely, require S.Ct. 1610. do not simply preventing zona’s interest not system, political "that a State’s sustain some fraud, promoting public but also in confi- allowing damage” legisla level of “the before system, dence in Munro, the electoral and the record ture take corrective action.” [to] contains evidence from which U.S. at the district 107 S.Ct. 533. collection, through that ballot indi- 2059. Consistent tends U.S. at and.organizations convey sup- their Burdick, Integri- viduals upheld we Public with (ward- process and port for the democratic ty election restriction Alliance political parties. particular candidates elections) that furthered primary based Danley Ian stated example, For declarant “ensuring representar local the interest coalition, Arizona, its helps his One that among diversity geographic. ensure that their voices are heard “voters can- ensuring “the officials” that elected by “collecting Day” per- on Election actually given nominated in a didates ward sonally delivering signed, their sealed ear- their majority of support of a have the Similarly, ly ballots.” declarant Rebekah ward,” though party’s even that , that H.B. Friend under stated other less-restrictive means such candi- Federation of Labor will Arizona State achieve date-residency requirements could fulfilling goal its difficulty encour- purpose. broader same to register aging members vote Party, Similarly, Arizona Green longer no be able help because “will state rejected argument that by taking or other its members voters vote most “adopt must is the system signed, early sealed ballots to the possible” efficient such that later deadlines Therefore, ar- office.” Feldman Recorder’s set, in minimis light could be “de convey gues, “ballot collectors imposed by existing burden” deadlines. important with their words but As the court 838 F.3d at 992. district deeds,” with their found, chain-of- H.B. 2023 establishes a consider whether collec- first We custody for ballots that furthers absentee expressive protected tion is conduct under reducing stated Arizona’s interests Clark, First Amendment. See confidence, public promoting fraud and (“[I]t n.5, 104 is the at 293 S.Ct. 3065 restrictive, other, laws though even less obligation person desiring engage may. purpose. achieve same broader assertedly expressive conduct demon- sum, the district we conclude ap- the First Amendment strate that even finding err clearly did To plies. hold otherwise would be create imposed H.B. 2023 a minimal burden presumptively a rule that all conduct is voters’ Fourteenth Amendment agree expressive.”). We vote, finding suffi- asserted that not. if ballot it is Even collectors ciently weighty justifying lim- interests that is im- intend communicate itation, ultimately concluding that and accept portant, cannot that view “[w]e Feldman that she failed to establish variety of apparently limitless conduct likely to succeed on the merits her ‘speech’ per can be labeled whenever the challenge. Fourteenth Amendment engaging in the there son conduct intends express an idea.” United States 3 O’Brien, 367, 376, 88 391 U.S. S.Ct. next First We consider Feldman’s (1968). burning an 20 L.Ed.2d 672 Unlike Feldman, According to Amendment claim. medal, military flag wearing American or expres- the district court undervalued convey a message collection does not ballot it significance sive collection ballot when reasonably that be understood “would Swisher, unlikely to succeed concluded she was the viewer to be communicative.” Clark, on 468 (quoting the merits of her First Amendment F.3d at 811 311 U.S. at claim, Rather, 104 con- freedom Feldman viewer association S.Ct.

393 mailboxes, reasonably collec or political promoting would understand ballot candi parties. facilitating voting, to be a dates and tion means Ariz. Rev. 16- Stat. see, 1005; Timmons, e.g., 520 .message. communicating not a means of U.S. at (concluding 1364 See, Am., Steen, 117 S.Ct. that the burden e.g., Voting Inc. v. for imposed Minnesota law 2013) political (concluding F.3d party’s First and Fourteenth Amendment registration collecting delivering voter appl s rights was not the party severe because “merely i conduct” ications likes, “free to remained endorse whom it nothing inherently “there ex because others, ally itself with can nominate it). pressive” about office, spread for didates and to its mes political organizations While undoubted listen”). sage to who all will H.B. 2023 does ly engage protected activities, col ballot prevent organizations not individuals acquire lection does not First Amendment mfro “for associating advancement it protection merely is carried out because ideas,” political goals common Tim along protected speech. activities and mons, U.S. at 117 S.Ct. Forum See & Acad. Institutional “[banding] together from in promoting 66, 126 Rights, Inc., at among the electorate candidates who es (concluding “combining speech and views,” pouse political Cal. Demo enough expres conduct” is not to create Party, cratic at conduct); Am., Voting sive 2402. (“The repeatedly has Court also ex Turning to Arizona’s regulatory inter- non-expressive plained that does conduct ests, we conclude for the reasons discussed acquire protection First Amendment supra at 389-90 that the district court did whenever it is another ac combined with clearly, err in finding that Arizona has tivity that Be protected speech”). involves important regulatory prevent- interests in H.B. regulates third-party cause maintaining integ- voter fraud collection, is non-expressive rity process. Accordingly, electoral conduct, the district court did not err in properly the district court could conclude concluding impli that H.B. 2023 does not important regulatory that Arizona’s inter- the First cate Amendment. justify any ests are sufficient to minimal Moreover, even if H.B. assumed that we rights, ón burden associational as dis- Amendment, implicates we the First supra cussed agree with district court’s conclusion sum, that ballot collec- conclude pre- Arizona’s regulatory interests expressive implicating is not conduct venting justifies voter the minimal fraud Amendment, were, if the First but even imposes that H.B. burden associa- an important regulatory Arizona has inter- rights tional under Anderson/Burdick justifying est the minimal burden Looking imposed first at burden test. imposes freedom associa- H.B. H,B. 2023, court the district not did tion. The court in con- did not err clearly finding err in that H.B. 2023 does cluding unlikely that the Feldman was impose not a H.B. 2023 severe burden. on the merits of her succeed First Amend- prevent not organiza- does and individuals ment claim. vote, from tions others to encouraging edu- IV voters, cating helping register, help- voters voters, ballots, their ing complete. early Having the district court concluded that providing transportation holding or err in voting sites did not that Feldman failed

394 H.B. on prospective The of 2023 impact of a likelihood success

to demonstrate voters, the district found merits, remain- briefly consider the inconvenience, largely bo does not out- be issuing prelimi- for a ing factors equitable Arizona, hardship on which has weigh the likely not nary injunction. Because is of in compelling interest the enforcement her of will a violation that suffer Feldman Holder, duly Nken v. its laws. See enacted rights, like- constitutional she statutory or 418, 1749, 436, 173 129 556 S.Ct. U.S. irreparable that ly has “failed establish (2009) (recognizing public L.Ed.2d 550 to preliminar- from a failure harm flow will law); of interest in the enforcement Hale v. actions.” ily enjoin defendants’ (“When Veasey v. 769 F.3d at Perry, 895 910, (9th Energy, F.2d 918 Dep’t 806 necessarily the State statute is enjoined, Cir. denying harm of irreparable suffers the public in the enforcement interest if had raised serious Even Feldman laws.”). matter, general Arizona’s As claims, questions to the merits her as early voting process regulation of the ad- irreparable and also shown likelihood in ballot se- preserving vances its interest Winter, 22, harm, at 129 S.Ct. 556 U.S. influence, crecy preventing “undue 365, not warranted because relief would fraud, tampering, and voter intimi- that “the balance Feldman has shown Miller, Ariz. at 179 P.2d dation.” in tips sharply” her hardships favor preventing fraud 277. interest public interest. injunction is that an Purcell, at “compelling,” U.S. Rockies, 632 at 1135. All. F.3d the Wild for for no less than for “qualified in which This one case Feldman, elections; no are over” there “do away from the might be turned run the election over “the State cannot Purcell, 5. at 127 S.Ct. polls.” provides to the tools H.B. 2023 again” Rather, pre- are it is one which voters possible Veasey Perry, combat fraud. their to third- giving from ballots cluded record, then, F.3d On at 896. party organizations ballot collectors tip “sharply” balance cannot be said means of mobiliz- must an use alternative Rockies, Feldman’s favor. All. Wild for Lair, voters. Cf. 632 F.3d at 1135. (the engag- options of “other existence interest, public finally turn We speech” ing in militated favor political inquiry impact “primarily addresses injunction against staying an enforcement non-parties,” Angeles Bernhardt v. Los restricting of a one avenue state 2003), County, F.3d Indeed, found speech). district court closely tracks inter Arizona’s own but many from voters who the.evidence ests, Nken, at 435, see do so their ballots to collectors entrust itself, “have 1749. its citizens Like Arizona convenience, cannot dis- and we merely Lair, in fair interest elections.” deep finding. Hinkson, F.3d at turb this See Even in the absence of actual (noting findings deference our fraud, early prospect fraud record). plausible supported public in the may confidence undermine not establish that record does Purcell, 549 election. U.S. at results need, light organizational plaintiffs’ least, the very At H.B. 2023 127 S.Ct. 5. part H.B. reallocate resources exorcizing specter illegiti assists reconfigured get-out-the-vote macy of a effort may hang over electoral in the minds of citizens. hardship. process some constitutes substantial public deep tially “Given the interest in honest polling places, reduced number lines, in resulting long “numer extraordinarily and fair elections” as well as the waiting many voters to ous for submit hours cast options” available voters to their area, In ballots. one urban there is ballots in H.B. one Arizona consistent with 70,000 voting center for 2023, Lair, nearly registered removing F.3d at precincts voters. In some in Maricopa H.B. regulatory 2023 from the State’s tool County, voters for four waited to hours box in voting period may the middle cast ballots in the their Presidential Pref- to perceived integ well do more harm the Primary erence year. election earlier this rity legitimacy of the than election precincts, In other up- to six wait good. that, hours. Compounding the problem is not only unlikely Feldman is therefore in Maricopa County particular, polling merits, but,'as prevail to on the election, places change with each and the concluded, her in avoiding 'interest County using polling place different possible irreparable harm out- does not system general for the election it did weigh public’s Arizona’s and the mutual Presidential Preference election ear- interests the enforcement of H.B. 2023 year. lier this pending final In resolution case. this early As use of voting skyrocket- has conclusion, reaching this heed "Su- Arizona, ed voters increasingly preme Court’s to admonition consider the friends, organizations, political used par- “specific cases,” Purcell, harms election to ties, campaign workers transmit attendant their Some typical ballots. efforts are enjoining the enforcement of a vot- state’s “get-out-the-vote” by partisan campaigns it is currently play, law while provide others groups; targeted to are just weeks election. before get service to those who cannot AFFIRMED. polls. geographic Because im- other THOMAS, Judge, dissenting: Chief pediments voting, by voting ballot col- lection has become a critical means for Arizona has criminalized one of the most minority voters cast A popular ballots. by and effective methods which minority substantial number rural vot- minority voters their ballots. cast Because easy ers areas access to live without this Constitution and the violates areas, many mail service. minori- Act, urban Voting I Rights respectfully must dis- ty socioeconomically voters disadvan- sent.

taged, meaning may that they lack reliable I rely public mail service and have n . get places. transportation polling states, Like most allows (cid:127) to cast a day polling ballot on election at a Nonetheless, Arizona enacted the law at place, vote, or to an early cast absentee issue, Bill House A.R.S. codified § person by either in or 16- (H)-(I), mail. imposes felony 16-1005 A.R.S. Early increasingly has become criminal sanctions non-household mem- Arizona, popular in evidenced caregivers early who bers collect ballots fact that last 81% ballots in.the east from Plaintiffs filed lawsuit others. early Presidential were Voting cast challenging law under voting, a 12% increase from Rights the 2012 elec- Act of 1965 First and the and Four- important tion. An reason the increase teenth Amendments to the United States early voting is that Arizona Constitution. The district court has substan- denied 396 injunc- regulating right for the to vote preliminary motion for view laws a

plaintiffs’ Takushi, v. tion, fol- 504 Burdick interlocutory appeal U.S. 112 and this (1992). 245 S.Ct. As we 119 L.Ed.2d . lowed. Integrity in Public Alliance: explained of preliminary the a review denial We balancing Burdick’s Under and means- All. for discretion. injunction abuse for framework, scrutiny ap fit strict is end Cottrell, the Wild Rockies v. propriate when First Fourteenth 2011). (9th A district abus 1131 Cir. court rights subjected “are to ‘se Amendment analysis premised its if its es discretion restrictions,”. Id. Norman (quoting vere’ Pom on an the view law. inaccurate Reed, v. 279, 289, 112 S.Ct. Hubbard, LLC v. F.3d 775 Wonderful (1992)). “But a when L.Ed.2d (9th 2014). 1118, 1123 In such instanc Cir. provision imposes only election state es, de novo the legal we premises review ‘reasonable, nondiscriminatory restric injunction. Id.1 preliminary the underlying upon tions’ the First and Fourteenth voters, rights ‘the II Amendment State’s important regulatory gen interests are analysis court district erred erally to justify’ the restric sufficient plaintiffs’ the Fourteenth Amendment Anderson, Id. (quoting tions.” First, a employed it erroneously claims. 788, 103 1564). at standard, the basis rational review when All., Integrity at Pub. 1024. F.3d “balancing and appropriate standard was Integrity Pub. All. However, analysis.” fit reviewing means-end rather H.B. Tucson, (9th 1019, 1025 City v. F.3d balancing under a and means-end fit banc). Integrity 2016) (en Public As the ra- Cir. district court analysis, conducted review, Alliance recognized, Supreme committing er- legal Court tional basis of re appropriate ror.2 established standard Therefore, majority

1. court’s law. review is de novo as to those the district believes LLC, by questions. findings at of fact F.3d are reviewed this Court Pom Wonderful opinion su- 1123. court’s error district has Most the district in clear because the court perior Maj. Op. question fact-finding capabilities. at volves a mixed of law and fact. In cases, appeals, majority as with other we re 380. The also a district believes question— view decisions de court’s answer to the such United States v. ultimate novo. Montana, County, there find- whether violation—is . Blaine The, majority of fact entitled to deference. However, proposition. cites Gonzales court not conduct eviden- district did majority Ari 2. The concludes that because hearings tiary disputed is- resolve factual regulatory are sufficient to zona's interests sues, undisputed, most record imposed by justify the "minimal burden” parties’ and the submissions were affidavit. not H.B. "the court was re district Furthermore, did court not analysis district here quired to fit conduct a means-end § 2 determine whether was a violation there Maj. Op. is an here.” erroneous That because, Gonzales, yet interpretation Supreme unlike we are Court and our is, n themerits stage inquiry. Supreme This precedent. "The Court delineated appeal injunction, preliminary of a denial of a standard of review for appropriate laws reviewing regulating so are deter- district court’s in Burdick Taku- vote unlikely plaintiffs "balancing are it is a and means-end fit mination shi[:T my All., of their Integrity succeed Pub. F.3d at merits claims. framework.” view, application likely may plaintiffs A succeed avoid court op- fit merits means-end framework favor rational reached conclusion, concluding posite simply errors of basis because made .review second, legal practice in this area have one important The common and more neighbor drop off up and error, pick mail misap court district was neighborly ser- others them street as by plied analysis required Burdick and representative vice.” The that there noted Celebrezze, 780, 789, Anderson v. office, which is post is one located (1983). L.Ed.2d 547 with highway across-a. crowded ears wait- AndersonABurdiek, the must Under court border, virtually and is cross the magnitude weigh of the nature and by inaccessible foot. by against burden imposed impact Another of the of the example justification state’s for it. and interest minority law on voters is the Tohono O’od- Brewer, Nader v. ham Indian The Tohono Nation. O’odham over million reservation constitutes 2.8 minor- The of the law Arizona burden It in the acres .Sonoran desert. an area ity both voters is and substantial occurs Delaware, larger and Rhode Island urban and areas the state. rural approximates the size Connecticut. presented to evidence uncontradicted 14,000 registered It It has about voters. that, a substantial showed not home mail It does have has delivery, minority number voters used col- office, post one is over 40 miles voting. lection as their As Mari- means away from many residents. The evidence copa of Supervisors Steve Gallardo Board this case shows that restrictions bal- testified: “ballot collectors used lot collection the Tohono affect O’odham large part by Latino Native American significantly. tribe one No contested groups collecting] has come [ballot fact that members the Tohono O’od- enabling voters in com- be critical those ham Indian Nation limited to a access exercise munities to fundamental delivery. no home mail postal service and vote.” no Similarly, disputed one that members that, in many The record demonstrated do Cocopah Tribe not have Indian of mi- proportion rural a high easy areas with post mail access to a delivery home voters, nority delivery home The Cocopah mail Reservation is located office. River, available, extremely along the lower Colorado south of and was difficult Yuma, Cocopah Arizona. post Reservation travel office. No one contested 6,500 acres, comprises approximately the fact the rural communities of 1,000 tribal who approximately members Luis, com- Somerton and which are San and work on or near live the Reservation. voters, prised Hispanic and 98.7% 95.9% respectively, were without home mail de- areas, to urban As dem- evidence record transportation. As the livery and reliable the law onstrated burden af- testified, representative for that district minority most voters the because of fected many Minority of these voters are elder- factors. voters in “[b]ecause socioeconomic likely to eco- mobility challenges, it a urban areas more ly and have were regulatory justify voting make it neces- extent to which those interests state’s interests Moreover, rights." saty plaintiff’s imposed. us to burden the burden Burdick tells case, magni In this weighing 112 S.Ct. 2059. that in “the character neces- injury” against “pre State’s asserted interest does make tude asserted saty on the put substantial burden cise forward the State as interests Simply imposed rights put, the State's justifications of minorities. for the burden rule,” employed. fit the end does not means we must take into consideration “the day. According ballots on election disadvantaged. The record noraically nonprofit organiza- of a minority Executive Director many urban voters showed Afri- working primarily low-income delivery; with insecure mail places lived neighborhoods, and Latino can-American many minority urban were de- significantly this confusion burdened those which public transportation, pendent upon many communities because minorities had in-person voting diffi- day made election difficulty navigating voting process, the es- minority cult; many voters worked Spanish-speaking those voters who pecially making it take jobs, difficult to several English. not also fluent record were The person; to and that time off vote work also showed that administrators minority not have many infirm voters did prone Spanish- to make errors with were caregivers family to who access could voters language materials. Those encoun- transmit ballots. significant polling places. ter hurdles Quezada, for Ari- Martin State Senator Thus, early opportunity voting the Twenty-Ninth District testi- zona’s Senate especially important those citizens. fied that: the The district court and State dismiss 213,000 con- represent approximately I on minority the burdens voters imposed stituents, nearly of ethnic which are 80% early seeking pro- vote as attacks on a particular, citi- Hispanic minorities. only'a'“more provides cess that conve- comprise population 67% of the of zens However, voting. nient” means when district, my highest percentage early electorate uses 80% the absentee My in the of Arizona. any district state by voting they as the method which cast community, working-class is a ballots, the method has transcended depend oh many my constituents has convenience and become instead transportation. Many my public ] [... Thus, necessity. when practical severe bur- by severely constituents were burdened placed voting, on this form of dens are long polling lack loca- lines and significant impact on elections has presidential preference tions in the 2016 to vote. My only had one election. entire district burden, Against this justifica- state’s center, Maryvale, vote to service the tion for the law was weak. The state iden- 70,000 nearly registered .... as preventing tified interest voter organiza- a nonprofit The President of However, sponsors legis- fraud. comprised of Latino and com- citizens identify single example lation could not munity many minori- leaders testified by of voter fraud caused ballot collection. required making ties assistance sure single example Not Nor is one. there they following proper were primary propo- of this the record case. procedure, they in low income areas legislation nent of the admitted there were security of their were concerned about the fraud, examples of such but that no mailboxes. was, legislation speculative based complicating voting in Further Arizona’s theory study by A that fraud could occur. only urban areas is that there are not few that, Republic out of the Arizona found vote, places polling loca- but of ballots cast from millions Indeed, change frequently. tions because only prosecu- 34 cases of there were fraud City of Phoenix are run inde- elections voting by tion. All involved or non- felons City, pendently by might any allegation a voter citizens. None involved go polling places to cast collection. And none of the different fraud two Capone’s noth- study by A of A1 there simply a conviction. vault: cases resulted Associa- Republican Lawyers there. the National

tion, finding voter dedicated Thus, one balances the serious when investigated poten- evidence fraud placed on minorities the law burdens 2000 and tial fraud uncov- between against extremely justification weak resulting of fraud from example ered no state, one can conclude offered delivery early collection and ballots analysis the Andersortr-Burdick under follow-up analysis through A in Arizona. plaintiffs a likelihood have established May failed uncover exam- Four of success on the merits of their plain- ples ballot collection fraud. teenth Amendment claim.3 Based that at- produced numerous affidavits tiffs record, mostly úncontroverted the district ballot that no one associated with tested misapplying erred in Andersorv-Burd voter any ever collection had witnessed ick.4 Further, that the record indicated fraud. III processes place there are effective any signs any ballot that exhibits handle denying court also erred in The district tampering has occurred. The Director injunction preliminary motion for a Maricopa County, of Elections for Rights Voting Act claims. based Arizona, county in with a populated most Voting Rights Act of 1965 “was de next most population of four times the blight of signed by Congress banish the legisla- at the populated county, testified in voting, racial which has discrimination hearings County well of process parts tive infected the electoral nearly voter fraud. Under equipped country century.” to deal with our a State of 308, Katzenbach, 301, can 86 procedure, check v. state S.C. 383 U.S. (1966) 803, abrogated time. In L.Ed.2d 769 the status their ballot S.Ct. — Holder, short, v. U.S. by Shelby Cty., Ala. specter voter fraud 2612, -, 186 L.Ed.2d opening much like the 133 S.Ct. collection is vaunted invalidity of a majority plaintiffs in this differ in the extent to which 3. The asserts that (facial, challenge bringing to H.B. in all case are a facial be demonstrated statute need they “heavy bear a burden personal appli- 2023 and therefore applications; as-applied, in a challenges persuasion” because such "raise cation). Invariant, however, is the substantive interpretation premature of stat- the risk of words, In other how law to be rule used. (internal Maj. quotations Op. at 388 utes.” invalidity one must demonstrate the statute’s omitted). noting that neither the It is worth challenges, types for both remains the same categorize plaintiffs the defendants nor showing specific a rule of namely, by challenge; challenge as a facial to H.B. 2023 law, law, usually inval- a rule constitutional majority opinion It is also only the does so. whether, statute, personal ap- in a idates the securing interpre- noting a court’s worth or, Velazquez,462 at 228 plication to all.” H.B. 2023 before the tation of effects of original). (emphasis in point seeking is the law is enforced injunction. my part, I preliminary But for Constitutional 4. Plaintiffs assert an additional without a difference think this is distinction my claim under the First Amendment. underlying constitutional stan- "[t]he because view, concluding court erred in the district challenge] applied ... is no [in an as dard 2023 did not burden their First that H.B. challenge.” Legal in a facial th[a]n different However, rights. Amendment associational Corp., Legal 608 F.3d v. Servs. Aid Servs. Or. view, not abuse its my court did (9th 2010) (quoting Velazquez Cir. injunction (2d denying preliminary discretion Corp., Legal 462 F.3d v. Servs. 2006)). independent challenges claim. as-applied based Cir. "Facial and (2013). Roemer, 501 U.S. Congress’ challenge." The Act constitutional “implemented 383-84, 111 S.Ct. 2354. country of firm intention to racial rid voting. provided It strin discrimination claim, plaintiff § 2 To on a succeed gent against practices new those remedies (1) challenged stan must that “the show frequently dard, have most denied citizens -practice, procedure impose or must of a discriminatory on the basis of their burden members vote class, Elections, protected meaning members Allen v. Bd. race.” State protected opportunity class have less 544, 548, 817, 22 L.Ed.2d of- than other members the electorate (1969). participate political process in the and to Act purpose The central of the was “[t]o representatives elect of their choice” enforce the amendment fifteenth (2) part “that burden must caused Chisom Constitution United States.” or historical linked social and conditions Roemer, v. currently produce that have discrimina (1991) (quoting against 115 L.Ed.2d 348 of the protected members League 89-110, Women 79 Stat. U.S.C. class.” Voters Pub.L. of N.C. Carolina, North et Fifteenth Amendment seq.). 2014) (internal omitted); quotations provides right of citizens of that the “[t]he Abbott, Veasey see v. 830 also F.3d United to vote not be States shall denied (5th 244 by abridged by or or the United States race, color, any on account of or State of The district court made a number previous legal analysis § condition servitude.” U.S. in its of the 2 of errors claims, XV, § 1. warranting Const. amend. reversal. Act, § At in case is 2 of the issue this A “a of the which is restatement Fifteenth holding, court The erred district as Roemer, 111 at Amendment.” U.S. law, § requires proof matter of of lim- provides, Section without disparate by of impact “quantita- the a law itation, any voting qualification comparing or statistical tive evidence the right citizens the to vote in a denies dis- minority proportion of white versus criminatory Voting manner violates the rely early to collect their who others 1973; § Rights Act. 42 U.S.C. see also concedes, As there is ballots.” the State no

Allen, 566-67, at S.Ct. 817 supporting requirement; case law the Congress intentionally (noting that chose only on district relied it cases “voting expansive qualifica- the language thought “strongly suggested” it. prerequisite voting, or or stan- tions quantitative or Although statistical dard, procedure” § practice, or so minority of comparing and white measures of practice” “all-inclusive of be kind voting patterns certainly may provide im- citi- might by deny used states to be evidence, portant analytic the district court (internal right quotation zens the vote they were concluding erred the omitted)). 1982, § marks As amended Indeed, proof. of means exclusive dis- “clear that certain practices makes trict court’s conclusion belied. procedures that result or the denial itself, Rights of Voting words Act abridgment vote forbid- provides § that a violation of 2 is though den even proof totality absence “based on the the circum- 10301(b) discriminatory protects (emphasis intent them from stances.” 52 U.S.C. added). Arizona, requires The statute evidence that zalez 2012), minority The of the affected class Cir. district court’s restriction members legal constitutes error. other mem- opportunity “have less participate bers the electorate Even if we leave aside the irreconcilable n political process representa- to elect pro- conflict court’s between district added). (emphasis of their Id. tives choice.” posed requirements rule incompatible statutory The criterion statute, governing approach district’s of proof restriction the district court’s with fatally is still flawed. quantitative minority of actual denial First, quantitative measurement of the voting.

voting compared white with the'voting of a rule on effect behavior the chal- question- relevant is whether demographic populations must different practice, totality in the lenged viewed necessarily occur after the election. One circumstances, places disproportion- cannot test real statistically world ef- opportunities ate burden on the minori- abstract; only fect of a rule can 244-45; Veasey, ties to vote. 830 F.3d at actual In other measured data. Voters, League 240. 769 F.3d at Women words,- imposition of the court’s part analyzing Even when the second mean proposed rule would that-there could test, require causality, § 2 which does pre-election be a chal- never successful analyses statistical are not exclusive lenge placed minority of the burdens Veasey, showing method of a violation.5 voting opportunity because no data will Indeed, Supreme generated been collected. analysis after the could occur harm approach Court has eschewed that favor inflicted. That cannot be Gingles, been result of various factors. had consideration purposes squared broad remedial 44-45, Rather S.Ct. 2752. Voting Rights the Act. The Fifth Cir- of narrowly interpreting Voting than cuit, rejecting in approach similar Act, em- Rights has Supreme Court court’s, acknowledged prob- district phasized its purpose “broad remedial lem, requiring proof observing that such ridfding] country of racial discrimina- pre-election “present[ problems ] would explained in it voting” and has that yet challenges ... no such data when is in provided possible scope “the broadest Veasey, at 260. available.” Roemer, combating racial discrimination.” Second, The dis- at S.Ct. 2354. is not U.S. the relevant data available is also that it trict court’s formulation in concedes does mechanical State Arizona. data, necessary circum- not and asserts “totality with the the' collect the odds that that it not bear burden approach Gon- should stances” we underscored rely Likely plaintiffs on a vote deni § 2 could not majority opines itself that "[w]hile evidence, proposition because require quantitative past al case for the stated not does case, reality vote practical denial suggest that typically cases such evidence that quantitative of a rule on necessary evidence of the effect disproportionate bur- to establish voting elec majority behavior is available after an Maj. Op. also is case. The district court’s conclusion tical showing, though collecting even such showing with the the odds evidence law likely impossible. That was evidence was I disproportionately burdens minorities. Act, Voting Rights not the intent of the previously the situation described it just such a circumstance Nation, by Tohono O’odham sit- faced the “totality of requires of the the assessment acres, million uated 2.8 with limited circumstances.” no post access to a office and home mail Fourth, plain- in examination of its the delivery. Everyone concedes that there is evidence, in the district court erred tiffs’ analogue. no white There are population comparative the analysis. faulted It no There is reservations Arizona. white plaintiffs showing comparative for not data no comparably sized rural area that en- from other rural white-centric areas. But compasses white-majority population. a required by that is not the examination "the plain uncon- evidence was record Voting Rights Act. examines places dispropor- Section H.B. 2023 troverted: class protected opportunities whether “members of the tionate burden on the by of preponderance Tohono tribe the evidence. Bart of of the O’odham members Strickland, 1, 19-20, lett of population the comparison with (2009). Thus, 173 L.Ed.2d 173 voters. white parties seeking preliminary injunc the provided plaintiffs the by The evidence tion in this case they likely must show pattern in areas. showed a similar urban merits; prevail to the if plaintiffs the significant Minority voters encountered burden, satisfy then the opposing par exercising their to vote. burdens réjoínder. ties bear the burden of Thal polling places The reduced number of heimer, 645 to meant voters had hours line wait Here, rejected plain- the district court to cast ballots. Low income voters had tiffs’ tendered evidence because difficulty getting polls to because of “compelling.” At preliminary injunction dependence public transportation. their stage, plaintiff required is not to pres- English who were not fluent in had Voters evidence, “compelling” but to es- ent determining difficulty where vote. Sta- ,likelihood by prepon- tablish success to see that tistical evidence not needed derance the evidence. The district coúrt collecting, these will without rejected the tendered as “an- also evidence opportunity have less than other members ecdotal,” but Supreme Court has con- politi- participate of the electorate just sidered and credited At such evidence. process. cal injunction stage, preliminary plaintiffs sum, committed le- the district court obligated to show a likelihood suc- were gal plaintiffs error requiring the in showing pro- of the cess “members disparate impact of the proof show class have less opportunity tected by “quantitative evidence statistical to partici- other members of the electorate minority ver- comparing proportion pate political process elect rely on white others sus voters who representatives their choice.” early That formula- collect their ballots.” Much the evidence tendered statute, governing is at .odds with the as to this was not contro- plaintiffs burden “totality of requires analysis by noted, I no As have contested verted. one circumstances” whether members . of fact the rural communities minority opportu- affected class “have less which, Luis, ,com- Somerton and San are. nity than other members the electorate voters, Hispanic prised of 95.9% and 98.7% participate political process home de- were without mail respectively, representatives of choice.” elect transportation. No one and reliable livery 10301(b). U.S.C. that the members contested fact do not Tohono O’odham Indian Nation- B delivery. disputed mail have home No one as a matter also erred Na- Cocopah that members Indian plaintiffs’ of of the law its assessment delivery. not mail The tion do have home of proof. proof burden burden of “[T]he affidavits plaintiffs submitted voluminous preliminary injunction phase the tracks on showing the that the restriction burden ” of .... Thal proof the burden at trial on minori- impose collection would City Diego, 645 heimer v. San not contest the affida- ties. The State did of voting vits, In a as the evidence simply but dismissed case, Thus, rights plaintiff the the burden much of the evidence bears “anecdotal.” plaintiffs dispro- as the by the to proof of at trial must violation tendered and show a ter, vote, to participate to or otherwise minority was burden on voters portionate process; in the democratic or completely undisputed uncontest- either (2) voting the to in the extent which ed/ or political elections of the state subdivi- However, plaintiffs once estab- the had racially polarized; sion voters, minority lished the the burden (cid:127) (3) extent which the state or the to of place not the did burden district unusually political subdivision has used Rather, categori- it rejoinder on the State. large districts, majority vote re- rejected cally personal evidence based on quirements, anti-single shot provisions, “anecdotal,” knowledge and as held voting practices or procedures or other required plaintiffs to the show were the may opportunity enhance similarly bur- white were rural minority discrimination the against words, plaintiffs In the dened. once other group; minority the burden had 'established (4) slating pro- if there ais candidate voters, higher imposed the district court cess, whether the of the mi- members shifting proof, of rather than standard nority group have been denied access to State, rejoinder rec- of to the burden process; provides ord no as to rural information (5) to of the extent members which voters. The district court viewed that white minority group political or state fact, to plaintiffs’ as fatal claims. In of subdivision bear the effects discrimi- plaintiffs that the meant had satisfied their education, such em- nation in areas threshold and requirements, the State had health, hinder ployment failed to district rejoin. The court erred to in the ability participate effectively holding plaintiffs higher to evidentia- political process; ry burden. (6) campaigns have political whether or

been characterized subtle overt C appeals; 'racial (7) the extent which members court did reach the sec- minority group have been elected prong analysis, namely, ond of the public jurisdiction. office in the part whether the burden was caused Gingles, 478 U.S. at or linked social historical conditions addition, the in some Court added currently produce or that have discrimina- cases, probative inquir there value in against protected members ing significant is a “whether there lack class; Nevertheless, plaintiffs estab- responsiveness on offi part elected lished a likelihood success the second particularized cials to the needs prong. group” members the minority part analysis, As second the state or policy underlying “whether Supreme has identified Court several fac- political subdivision’s use such consideration, tors into taken consis- qualification, voting, prerequisite or legislative history tent with the the Vot- standard, practice procedure is tenu Rights Act, namely: 28-29, Id. (citing Rep., ous.” S. Admin, & Cong. (1) pp. U.S.Code any history the extent of official News 206-207). discrimination in the political state or factor, subdivision that touched As the first extent of . minority group regis- members of the in the history to of official discrimination

405 political or subdivision that touched Native Arizona especially state Americans in right minority voting Although of from the members of the suffered restrictions. citizens, Native Americans were U.S. vote, to to group register, or to otherwise in Supreme Arizona Court held 1928 that process, participate in the democratic Ari- they: could vote they because were long history of imposing zona has had a Hall, under federal guardianship. Porter v. 1912, minority In burdens voters. short- 308, 411, (1928). 34 Ariz. P. 419 Even statehood, ly after im- gaining Arizona after ban was in overruled 1948 in posed voting. test for In literacy Cochise Laveen, 337, Harrison v. 67 Ariz. 196 P.2d Counties, and Pima of the denial (1948), Native signifi Americans faced to nearly half vote meant the pre- to See voting. generally, cant obstacles enough cincts to justify lacked voters hold- Patty Ferguson-Bohnee, The History of primary 1912. From 1912 elections Voting Rights in Indian Arizona: Over 1960s, early registrars to ap- coming Suppression, Decades Voter of test plied literacy ability to reduce the 1099, 1112(2015). Ariz. St. L.J. Americans, Americans, African of Native long history of of Because its imposing Hispanics register to an to In vote. minority voting, burdens on be- Arizona against action filed Arizona enforce subject one of pre- came nine states to the Act, Voting Rights the United States Jus- requirements clearance' of Voting Department 73,000 tice estimated that peo- Act Rights after was amended in ple could not vote of the because existence protect language minorities. Reg. Fed. of literacy test. pre-clearance provision, 43746. Under the passage Voting Rights Act required Arizona approv- wa.s obtain the suspension literacy caused the Department al of the States United Arizona, test but the statute remained implementing any Justice af- before repealed in effect until it after was fecting voting rights representa- Congress through banned use tions minorities. Since the Depart- Voting Rights to the amendment Act. has four Justice vetoed ment statewide chal- subsequently Arizona unsuccessfully redistricting plans proposed by Arizona lenged literacy Congressional ban appeared against mi- to discriminate Mitchell, tests. Oregon v. subject norities. Arizona When was to the S.Ct, (1970). In 27 L.Ed.2d 5,§of pre-clearance requirements bill that, Mitchell, Arizona, noted the Court or precluding criminalizing ballot collection eight two with Hispan- counties out passed legislature, the Arizona but was populations ic 15% excess of ultimately showed repealed due concerns about registration equal Department approval. voter to the state-wide Justice legislature passed average. 260. In the a measure Id. ban- collection, 1960s, ning partisan there ballot violation were number initiatives was It re- Arizona, which a misdemeanor. was discourage minority voting in repeal placed after its pealed on the “Operation Eagle Eye.” such as Under plaintiffs referendum. estab- Operation Eye, minority Eagle as to a likelihood success the first lished challenged variety were on a pools factor. pretexts, goal preventing with the voting slowing minority factor, down the pro As to the second extent long cess the polls lines at create in the state or elections discourage racially polarized, voting. political subdivision of namely, extent to which' members history racially polar- of the had

Arizona has group minority have been elected the provided expert voting; plaintiffs The ized jurisdiction. of in As Janu- public office the detailing history polarized of testimony the over Hispanics constituted 30% ary the analysis showed voting. Statistical of but held 19% the population, of the and non- white polarization between sharp legislature. African- seats in'the voters. white up popula- made 4.7% the Americans in the discus- the reasons For described tion, legislative of the 1% seats. but held one, plaintiffs demon- of factor sion better, slightly Americans fared Native to factor of success as a likelihood strated constituting population of the 5.8% three, to which the namely, extent legislative 4.4% of the holding seats. used un- political or subdivision has state are not the Gingles But the factors end districts, majority usually large story. obligated are to look to of the We anti-single provi- requirements, shot vote circumstances.” 52 “totality sions, practices proce- or voting or other 10301(b). election, in-per- § In U.S.C. may opportunity enhance the dures voting significantly are opportunities son minority against for discrimination places by polling sig- lack of hindered group. places, in all changes polling nificant voting access issues affect Because extraordinarily long which have caused candidate, to vote the fourth person, up voting six hours lines slating concerning factor the candidate to in- some locations. hindrance This process is not relevant. minori- person voting heavily falls most So, “opportunities” the cited for alter- factor, ties. The fifth the extent to which illusory. H.B. 2023 has nate now minority group members of the imposed significant burdens on additional political or ef- state subdivision bear the ability to their to cast minorities as their in such areas as fects discrimination early through popular means ballots education, health, employment and totality The ballot collection. the circum- ability participate effec- hinder their election, coupled of this with the stances tively political process, falls deci- in Arizona’s elector- historic discrimination sively plaintiffs. plain- favor of The satisfy politics al are sufficient the sec- showing significant tiffs tendered evidence sum, plaintiffs requirement. ond that Arizona minorities suffered edu- in prov- a likelihood of success established opportunities, and employment cation stage Gingles factors two rates, wages, disparate poverty depressed analysis. § 2 higher lower unemployment, levels edu- attainment, to trans- less access cational D poor- portation, transiency, and residential plaintiffs established likelihood er health. § 2 Voting Rights on the Act success plaintiffs provided also substantial They established that the criminali- claim. factor, namely, as to sixth evidence collection that mi- zation meant political campaigns have been whether nority opportunity less had ap- racial characterized overt subtle other members electorate elect peals. choice, representatives Finally, plaintiffs provided part evidence or linked the burden was caused factor, Gingles to social and historical conditions that have supporting the seventh currently produce or discrimination from enjoining dissent this order the state against continuing Arizona from minorities. to follow its during ongoing laws an

own election. And IV despite major let there be no mistake: ity’s pretenses to the contrary, the order granted The district court should have granting injunction ruling is a on the preliminary injunction. the motion for a merits, and one based an unnecessarily legal The court a made number of hasty review and an statu unsubstantiated plaintiffs errors. The established that the tory analysis.1 and constitutional significantly anti-ballot-collection law bur- minorities, voting rights of partic- dens the I ularly Hispanic and Native vot- American background: 23, Some On September justification ers. of preventing The State’s 2016, the district court plaintiffs’ denied "not, not, voter support- fraud was and preliminary injunction motion a block- able. popular One most and effective ing Arizona from implementing certain minority voting is methods of now a crime. provisions in Arizona Bill House H.B. 2028 violates the Constitution and (H.B. 2023). provisions These limit the col- Voting Rights Act. lection early voters’ family ballot's many There challenges burdens and members, members, certain household Americans, in Arizona faced Native officials, government caregivers. and Plain- African-Americans, Hispanics, poor, appealed. tiffs A Ninth Circuit motions and the infirm who caregivers do panel unanimously plaintiffs’ denied or family. With H.B. has emergency injunction pend- motion for an added another: disenfranchisement. ing appeal panel on October 11. That same sponte sua 11 ruling amended October

I respectfully dissent. 14. A expedite appeal October O’SCANNLAIN, Judge, Circuit panel briefing, merits received heard oral CLIFTON, BYBEE, whom and CALLA- argument; opinion an and issued Octo- HAN, Judges, join, Circuit and with whom court affirming ber the district and SMITH, Judge, joins N.R. Circuit toas denying request preliminary for a in- I, II, III, Parts dissenting from the junction by majority. a two-to-one. enjoining order the State Arizona: day case was called en banc the same (and misinterprets ultimately opinion Eschewing our was normal issued. Gonzalez, sidesteps) Purcell v. schedule, exchange en banc memo (2006), L.Ed.2d inter opposed days, into .five compressed duly fere with a election proce established Now, thirty-five. just customary our two taking dure currently while succeeded, days call after the en banc place, contrary Supreme Day, to the Court’s just days four Election before court, respectfully majority command not to do so. I thus the district overturns alternately “Injunction,” 1. The Appeal); order discusses whether to Black’s Law Dictio (10th grant “injunction” ,2014); appeal, pending nary “Stay,” an Black's Order ed. Law (10th “stay” appeal, pending Dictionary and a id. ed. Because before Stays injunctions things: today are two different no court ordered Arizona not to has stay postpones judgment majority presumably or order enforce H.B. court; course, injunction, injunction today commands or issues an means See, prohibits party. e.g., against enforcing particular action a third State from Injunction Pending App. (Stay Fed. P. 8 R. statute. see, e.g., Lair panel precedent, from own panel, separate merits our motions Bullock, 1200, 1214 its desired to reach result. 2012) injunction (staying a district court’s elec “given II the imminent nature tion”), sister myriad and decisions our against Supreme The counseled Court Johnson, see, circuits, Crookston v. e.g., interference just type this last-minute Cir.2016) (6th (“Call it F.3d 398 841 our That case also involved court’s Purcell. laches, princi you the Purcell what will— against the issuing injunction a last-minute idea is that ple, or common sense—the elec- contested enforcement disrupt imminent elections will courts 2-4, 5. U.S. at 127 549 S.Ct. law. ”); v. Veasey .... powerful reason absent Court, 20, 2006, va- Supreme on October (5th 2014) Cir. Perry, F.3d 895 769 im- injunction, been which had cated injunction light an (staying “in the im pan- motions by Ninth plemented Circuit portance maintaining quo the status four 5—more than weeks el October election”); of an v. the eve Colon-Marrero 2-3, the election. Id. 127 S.Ct. 5. before (1st 134, 139 Conty-Perez, F.3d n.9 so, “immi- doing In Court stressed 2012) plain- (noting that “even where Cir. to give need nence of the election” tiff a likelihood of suc has demonstrated adequate time resolve factual the case cess, of an issuing injunction on eve Despite disputes. at 5-6. Purcell’s di- Id. extraordinary remedy is an election case, majority con- rect on this impact own”). disregard of its We also risks narrowly, fínes decision much too Purcell, only Supreme but other Court Pur- attempt distinguish its strained authority disfavoring changes last-minute in- cell, eleventh-hour disregards how this See, North e.g., rules. Carolina election the, election junction impact will current —N.C., League v. Voters Women many come. elections to -, 6, 190 L.Ed.2d U.S. S.Ct. (2014) stay (granting prevent interfer first, might respect At it seemed procedures roughly one ence with election precedent this time Supreme Court election).3 cases, all month In these before around, panel, and the motions when first clearly common thread "that the “the [was] wisely three-judge panel, merits later the Appeals decision Court of would injunction issue that no should determined change the election too soon rules Yet, at the stage. at this after third bite Veasey, date.” before the election again voiding Arizona apple, here we are — at 895. law, voting al- time while election ready days recognizes be- to ad- underway2 majority need four But the depart progeny. so Purcell and’ Day. doing fore Election we’ dress Husted, (6th voting began more 768 F.3d 524 Cir. Early in Arizona N.A.A.C.P.v. 2. And, Walker, ago, October three 12. weeks in Frank Court v. September vacated Seventh Circuit’s Likewise, stayed permanent in 3. Court enjoin stay preliminary injunction of a .2014 junction imposed by court and af a district law, ing application ID of Wisconsin’s voter September Circuit on the Sixth firmed put place by the district which had been Ohio required to add would have — -, April See U.S. early in-person See Husted hours. v. (2014), part, rev’g S.Ct. 190 L.Ed.2d — N.A.A.C.P., Ohio State Conference of Walker, 2014), 769 F.3d 494 Frank (2014), -, S.Ct. 189 L.Ed.2d ) (E.D. rev’g, . 768 F.3d 744 Wis. rev’g sub Ohio nom. State Conference of attempt'to distinguish position majority’s polling strained affect officials could -isunconvincing those cases reasoning process). —its misrepresents either or is Purcell irrele- Tellingly, barely the majority addresses vant issues at hand. And misses enjoining whether H.B. 2023 will create point the main of Purcell: the closer to an disruption confusion and days the final get, election we the more unwarranted is key election—a factor the Purcell court intrusion into the quo status of elec- 4-5, decision. 549 U.S. at tion law. (“Court elections, affecting especial- orders ly conflicting orders, can themselves result A in voter consequent confusion and incen- First, majority makes incom- tive away And, to remain the polls.”). from prehensible argument injunction that its record, based on this how could it? Factual pro- not affect “does the state’s election development in the sparse. record is The machinery.” cesses or 7. Order The at majority' says injunction be its will less law, fact, majority no cites or source of disruptive injunction, than the.Purcell but any support argument, kind this not of empirical offers a proof shred course, it face. is dubious its Of H.B. this proposition. at Order 7-10. At this directly regulates the election state’s point, it that no appears just one knows processes or machinery: governs it how much this court by confusion risks ballots, obviously collection of is in- issuing injunction, this after pro- weeks tegral an election how is conducted. suggested it cedures not.4 would What But majority’s under the logic, Orwellian is that has approximate- do know the State regulations get-out-the-vote' op- affecting figure four implement out and to ly days regulations are not erations somehow response necessary whatever to accom- (What process.” they, the “electoral latest modate our view the case. If then, might majority one doés ask? requiring action is four inappropriate such tell.) Apparently, majority be- Purcell, prior Day, weeks Election see lieves that that affect 3-4, measures surely at it is in U.S. (or herself) of a validity vote days itself a voter waning voting. Supreme courts, process. such Other affect Court rul- could have been clearer: an “[a]s closer, regulations, rejécted on similar disrup- election that risk [of draws view, majority’s widely tion] held that increase.” Id. 5. will at regulations aspects of many electibn an B beyond validity a affect vote See, process. e.g., Lair, The majority’s argument second —that (staying injunction cam certain this case it is different because involves laws); paign penalties finance see Harris imposes also law criminal that —man- Graddick, (M.D. 593 F.Supp. ages Ala. incorrect. It to be both irrelevant 1984) says, (observing that even com because Purcell the racial1 is irrelevant never constitutionality.”). support recurring judge which to This 4. This lack factual theme, and reason should another this court en- action[s] should that will "take[] Purcell, until after wait the election to act. See [important factual hance likelihood J., (Stevens, concur- 127 S.Ct. 5 correctly be resolved on the issues] will basis ring) ("Allowing proceed the election to with- speculation.” facts rather historical enjoining statutory provisions out at issue Id. provide the will with a record on courts better decision, the injunction indicates, Circuit issued imposes law whether even quo,” whether the sta- become the new “status even penalties affects had criminal an upset right before “colorable basis quo should dissent had to concede the tus (Alíto, J., our own for Id. at 7 It is incorrect because the Court’s decision.” election. involving in a given Purcell case noted that applied dissenting). circuit The dissent process and election,” “par- the electoral “proximity law affected Lair, 697 imposed penalties. ticularly troubling criminal See that absentee ballots injunction (staying F.3d at 1214 been [relying injunction] ha[d] on the sent campaign finance proof pho- to Montana applied out notation without penalties). criminal Id. enforced must be identification submitted.”

C D Third, Purcell majority misreads Fourth, that “unlike the argument Court con- inventing supposed Purcell cases, in Purcell and other circumstances judiciary was “dis- cern that federal delay bringing plaintiffs did not long standing procedures” rupting] state pattern of majority’s action” continues majority’s equating it with the and then inventing facts. Order at Nowhere 2023 preserve pre-H.B. the status desire Supreme Court discuss Purcell does the in Purcell quo. at 9. Nowhere does Order filing. timing plaintiffs’ of the Nowhere the standing “long state the mention Court say plaintiffs their does it that the affected 200, the Proposition voter procedures.” by delaying filing. chances of success Purcell, in had at issue identification law it factor in its Nowhere use this does in 2004 approved by Arizona been above, Indeed, analysis. recounted the as ofMay until 2005. precleared and was on the Supreme Court is far more focused 2006 at 5. The elec- 127 S.Ct. U.S. upset court the status date of orders that at the first election which was federal of the quo in relation to the date election. go into effect. The voter identifi- would See, Voters, 135 e.g., Women League of but, new, relatively “[gjiven cation was law (staying injunction 6. an ordered S.Ct. at election,” the Court the imminence of the by the Fourth month before Circuit a our injunction which would overturned plaintiffs that despite the fact to a pre-Proposition returned Arizona year prior challenged the at issue statute world, majority’s so-called “status election). to:the was actu- quo.” Obviously, 5. Id. at Purcell E changes

ally status concerned with of an quo occurred within weeks that had betraying its moti Finally, perhaps real election. vation, bafflingly suggests the majority re can or an that our last-minute intervention is quo that status

And quired Court Supreme now that the struck injunction place just been in has Frank, preclearance at mechanism 7. down the federal few months. See 135 S.Ct. — , Holder, in Shelby County Court vacated v. Supreme Frank -, 133 stay 186 L.Ed.2d September Circuit’s S.Ct. Seventh (2Ó13).But, majority might appli preliminary injunction enjoining whatever Shelby law, County has opinion, ID think of that voter cation Wisconsin’s absolutely no to the Court’s deci court relevance put place had been the district sion Purcell. By the time Seventh April

4H majority collected, one correct about basic evidence could have been includ point: procedural ing quantitative in discussing history data —the majority’s deci Purcell, sion consider grant and then to Supreme Court mentioned injunction pending appeal regulation pre- that the at forces the issue had been issue. so, In doing given record, the current 5. But cleared. U.S. at the majority, adopting Chief Judge suggest Court did not preclearance dissent, Thomas’s makes various errors in any way relevant to decision. both its constitutional and federal statuto Despite the majority’s oblique citation to ry analysis that further undermine its ar Purcell, any support one not find will gument that an injunction is necessary. pre- that decision for its statement Order at 6 (adopting reasoning clearance meant the law in Purcell was Feldman Sec’y State, v. Arizona presumptively pre- such valid—or 2016) (Thom 1085-98 Cir. sumption question at all mattered as, C.J., dissenting)). situation This means Quite before the Court. contrary, we are forced to reach the merits well. Supreme Court explicitly cautioned Lopez Heckler, See Order 6 (citing v. addressing it was not the merits 1432, 1435(9th 1983)). the claim Purcell. Id. majority, persuaded Unlike the arewe (“We express no opin- underscore that we by the analysis three-judge vacated ion disposition, here the correct after panel' majority opinion and the district briefing argument, full appeals opinion. Feldman, 1062- F.3d at court]_”). the district [from 87; State, Sec’y Feldman Arizona No. if majority Even believes that courts — CV-16-01065-PHX-DLR, F.Supp.3d engage heightened should in a review —, (D.C. Sept. WL Ariz. Shelby County laws after I—and 23, 2016) (D.C.)]. A [hereinafterFeldman given stress Supreme the Court has us key few points, some in those contained absolutely no to reason believe we opinions, worth highlighting. are One error support should—that not does the notion in majority’s reasoning the stands the out stage that such matters this review at pretend give most—its failure even litigation. plainly Purcell about the im- any deference to the district court’s denial court pact upcom- a have on an order will Purcell, of exactly same request. the See (or case, election, ing our ongoing) not 549 (concluding at that U.S. S.Ct. the merits of claim the constitutional un- Appeals give the failure of “the Court derlying Pre-clearance, that order. Id. deference to the discretion District Shelby County, the the merits of chal- .,. error”). Court was lenge point. to H.B. 2023 are beside days Four A before not an appropriate time for' a court to tell federal majority’s The Fourteenth Amendment a reconfigure State how it must its election analysis falsely claims the district court process. improperly a “rational conducted basis” Feldman, review. at 1085-87

Ill C.J., (Thomas, Yet, dissenting). the district I Unfortunately, though believe the mer- court used ba phrase never “rational sis,” its should not been until .explicitly reached a it Ari instead that stated thorough more case review could zona “must show that serves [ ] it[s law] interests,” it ideally important regulatory have been after conducted—and more quantitative no or evidence statistical analysis.5 Feldman that the burden conducted — Feldman, in the 840 F.3d at at -, exists record. (D.C.), F.Supp.3d 2016 WL C.J., (Thomas, dissenting). con- It 5341180,at *11. Voting Rights-Act that “the focuses cedes im majority argues that H.B. 2023 place disproportionately on the burdens voting, burden” on but a poses “substantial on with the comparison [sic] minorities the fact six cannot be reconciled with this general Id. at voting population.” Cnty. v. Marion Justicés Crawford added). that (emphasis “[t]he It concedes Bd., S.Ct. Election question is the chal- whether relevant (2008) found 170 L.Ed.2d 574 practice places a lenged disproportion- ... imposed ID law either Indiana’s opportunities of minori- ate on the burden burden,” id. at “a limited It ties Id. at 1092. concedes to .vote.” (Stevens, J., jus three .writing for plaintiffs lies burden with and that one, tices), id. at “minimal” seeking a parties preliminary injunc- “the J., (Scalia, writing three S.Ct. they likely tion in this must show case try to justices). majority not does even on Id. merits.” prevail at imposes argue of a that H.B. 2023 more Yet, it argues then that the district'court law, than the Indiana burden by asking plaintiffs to show the bur- erred just does cite instead Crawford. greater minority voters was den , The, majority argues the “state’s 1093-94. white voters. Id. at But for the Feld- justification weak.” plaintiffs had burden showing man, (Thomas, C.J., dis at disparate treatment. acknowl- Instead cannot be senting). This reconciled edging that record’s lack current language is no “[t]here Crawford’s showing disparate impact facts is fatal prevent state’s interest question” claim, majority invents this burden- important ing voter fraud is an interest. shifting requirement. at Id. 1085-89. It 194-97, 128 1610 (holding plaintiffs argues had estab- that “once .even,though no there was evidence in minority voters” burden lished vot type record that the particular “shifting erred prevent trying fraud law was Id. rejoinder burden State.” -the .occurred). in-pro has Arizona’s interest burden-shifting requirement— This is tecting public confidence elections require state to prove which would the important also Id. an established interest. (no negative disparity if minorities again at 128 S.Ct. 1610. the Once burdened) support in no the law. —has problem majority by pretend “solves” this exist, that does Craioford IV procedural history the Finally, unusual B up leading to and the con- this decision majority’s Voting Rights pressure placed The Act time trived ourselves (VRA) analysis is equally rendering this under- Section under decision why from shoddy. exactly It concedes scores courts refrain in- U.S.C. only E.g., Optical Lee requires leg- basis reason. review the that Rational Williamson 487-88, Inc., islature to some rational reason for the have Okla. law, important (1955). if is even it even if the 99 L.Ed. 563 proffers judge, legislature, rather than the what, tervening in elections at the last minute to label the relief it has have resolved absolutely to.6 must be handed in this they unless have determined down concerning, case.7 and as More discussed presumably After fuller consideration above, seriously order grapple fails to the own, judge, a district court our controlling Supreme precedent with Court panel, three-judge motions and a two- pertaining both to appropriateness of our separate panel merits judge majority of a stage litigation action this rejected all to have attempt Feldman’s en- underlying merits the issues this H.B, enjoined forcement of for the wholly also fails explain case. order Yet, only days current election. three why necessary to it is now overrule (and argument), majori- of review no oral October unanimous order from .11—which ty of our en hastily panel constructed banc judges one of approved who course, requiring has reversed joins now majority denying an identi- — change voting procedures weekend emergency cal in this same case. motion Election Day. presented before The record why We are left wonder deci- appeal pages; this exceeds 3000 sion, ago, is acceptable four weeks now the (which five, parties’ briefs now total after cause for immediate correction. present additional briefing) en com- banc Worse is precedent hastily still plex arguments; and well-reasoned and the majority will create. The crafted decision alleged constitutional violations are seri- purports delay ruling merits panel But our ous. en banc has found it presumably challenge H.B. so 2023— (indeed imperative) appropriate to resolve can be carefully this case considered. might matter time than we less “essentially” Order at 11. But it adopts the take to a motion to usually decide resched- reasoning twenty-nine page of a dissent argument. ule oral priginal opin three-judge panel from the ion, it Order at which concludes Despite pretenses to hav- majority’s clear “this Constitution violates ing “given thorough careful and consider- Feldman, Voting Rights Act.” case, presented ation” to in this issues C.J., (Thomas, If F.3d at 1086 dissenting). much Order one wonders how agrees our court with the of that essence dangers obvious inherent in our rushed dissent, what left decide oral after hoc process infected and ad the deci- argument? majority’s framing of this Purcell, sion in this case. 127 S.Ct. at Cf. 11, only just “stay,” issue as Order at (Stevens, J., (“Given concurring) the im- panel our en the fact that banc obfuscates issues, portance of the constitutional law, voting has Arizona’s blocked declared wisely Court takes enhance action will unconstitutional, presumptively they the likelihood will resolved quo the status overturned weekend correctly on the of historical basis facts ends, taking before all first without speculation.”). rather than a gain thorough the mas time needed to of this not record, The circumstances do case argument to hear oral tery the inspire majority’s in the parties, confidence order. from or to a the write considered First, majority the appear opinion. does not even to ly years carefully

6. to under the consid- Sometimes we are act cumulation forced time litigation. pressure, penalty such death habeas ered re- view, may but while the final issue orders execution, Supra before are usual- 7. 1. hours these cases note us, provisions permis- are quick to means identical majority is remind As the impermissible important.8 are in some states and in this ease sible the issues states, seventy- decision would other our invalidate deserved more Those issues including provi- many provisions, court’s of those of consideration. This hours two Ninth on the states the Circuit. to those issues hasty rush decide sions other I procedure regrettable. is of ad hoc basis a in this case will set action

fear our I cur- not that will harm precedent constitutional or is no federal There Arizona, but presumably rent election statutory right vote absentee ballot. line, many whenever more down Bd. v. Election Comm’rs See McDonald voting regulation that more enacts State 807-08, Chic., 89 S.Ct. judges of the active the Ninth than half (1969)(“It thus L.Ed.2d simply deem unwise. Circuit right to vote is at stake here but respectfully I dissent. right claimed to receive absentee bal- BYBEE, Judge, with whom Circuit Circuit statutes, are .... [T]he lots absentee CLIFTON, O’SCANNLAIN, Judges voting more designed to make available CALLAHAN, join, dis- and N.R. SMITH easily get to groups who cannot some senting: ... deny themselves polls, do not exer- franchise_”); see also join Judge I full cise of the Craw- O’Scannlain’sdissent. Bd., Cty. U.S. brief v. Marion Election separately emphasize I two write ford First, on who 170 L.Ed.2d restrictions points: Arizona’s (Sealia, J., (2008) concurring judg- may early question collect an ballot—a ment) (“That the State very may by early from vote accommodates who different (not by permitting requiring) some voters closely the recommendation ballot—follows casting provisional on Federal of absentee bal- bipartisan Commission Second, lots, indulgence is an ear- constitutional Election Reform. —not re- imperative short of what is ly here is a common falls ballot law issue Roupas, quired.”); and provision, similar restrictions Griffin 2004) (rejecting early may collection of or absentee ballots twenty-one right is “a blanket on the of some claim that found books there in ef- bal- provisions registered states. Those been vote absentee decades, lot;” en- “it that a they fect for is obvious federal have been voting, Act multi- Voting going Unless to decree weekend Rights forced. ("To (2005) Indeed, ordinary majority strongly implies deem 920] 8. 161 L.Ed.2d voting] important they to be widespread [on issues are so need burdens like these right every voting rights every away. subject virtually decided But electoral severe would pits arguments case similar about the funda- regulation scrutiny, hamper to strict the abili- right arguments against about mental vote ty equitable to run efficient and of States regulate need its elec- elections, State’s compel federal courts to re- See, e.g., Crawford, tions. codes.”). “impor- This write state electoral exception tance” would whittle Purcell down explained nothing. Justice As Stevens argument accept majority’s To Purcell, precisely these it is because issues importance compels of this case action leaves important not rush wondering that we should to decide change one what in election (Ste- See, U.S. at 6 S.Ct. qualify Clingman [127 5] them. important. would Cf. J., Beaver, vens, concurring). [125 v. day voting, voting (discussing all-mail or vot- a variety problems Internet in states): ing”). The Commission on Federal Election Arizona’s collection restrictions Reform recommended “States ... handling and absentee ballots are neu- should reduce the risks of fraud and abuse designed to provisions

tral the in- ensure in voting by absentee prohibiting ‘third- tegrity voting Although process. organizations, candidates, party’ politi- and majority there is claims that no evidence cal party handling activists from absentee by fraud “voter caused Building ballots.” Confidence, supra, at collection,” Maj. Op. (adopting 46. It made a formal recommendation: State, Sec’y Feldman v. Ariz. jurisdictions State and local should 2016) (Thomas, C.J., prohibit person from handling absen- dissenting)), Arizona does wait voter, tee ballots other than the an ac- possesses until it such member, evidence before it knowledged family the U.S. pro-active, legitimate It may acts. be Postal or other ship- rather 'Service per, practice or election officials. The reactionary. for voter And evidence states of allowing some candidates or handling fraud absentee is ballots party up pick workers to and deliver bi-partisan well known. Com- absentee ballots should be eliminated. mission on Election Federal Reform1 (Recommendation 5.2.1). Id. at 47 Ari- larg found: “Absentee ballots remain the closely zona’s restrictions hew potential source of voter est fraud.” Commission’s recommendation. H.B. 2023 Reform, on Fed. Elections Build Comm’n provides person that “A knowingly who (2005) in U.S. Elections 46 Confidence early voted collects or ballots unvoted Building As the [hereinafter Confidence]. person guilty from another of a is class colorfully so Seventh Circuit described it: felony.” § Ariz. Rev. Ann. 16- Stat. “Voting problem is serious fraud 1005(H) (codifying H.B. Consistent ... generally U.S. elections facili and recommendation, with the Commission’s [Ajbsentee by voting.... tated absentee the law does not to three apply classes voting voting person is to as a take- (1) “[ajn official,” (2) persons: “a proctored Griffin, home exam is to a one.” postal United States or service worker 1130-31; 385 F.3d at see also Wrinn person by other who is allowed Dunleavy, 186 Conn. 440 A.2d mail,” (3) transmit United States “[a] (1982) (“[Tjhere room considerable member, family member or household car- voting fraud absentee ... a 16-1005(H)~ egiver of the voter.” Id. to comply regulatory pro failure with the (I)(l). I can don’t see how Arizona be said governing vision absentee increases statutory have violated constitutional (citation opportunity for fraud.” omit bipartisan when it. recom- norms follows ted)); Liptak, Adam Error and Fraud an area mendations election reform Rises, Voting Issue as N.Y. Absentee fraught well understood to with the (Oct. 6, 2012), Nothing http://nyti.ms/QUbcrg Times risk of voter could be fraud. Foundation, Knight Commission on Federal Re- John L. Election S. James organized by University's form was American Omidyar Network. It co-chaired Democracy Manage- Center for and Election Jimmy former President Carter and former supported Carnegie Corpora- ment and Secretary of James Baker. State York, Foundation, tion of New The Ford in our elec- damaging to confidence more box. at the See

tions fraud ballot than or for other than the anyone voter study by a a Liptak, supra (describing to an family member return absen- voter’s finding that elec- at MIT political scientist 163-231(b)(l) ballot); § tee Stat. N.C. Gen. 800,000 rejected absentee tion officials guard- (allowing only family members or election; presidential in the 2008 ballots ians an absentee bal- personally to deliver failure rate suggests an “That overall (voter lot); 26, 14-108(0 § Okla. Tit. Stat. percent.”). as 21 much provide proof delivering a ballot must Ann. Ohio Rev. Code identity); II 3509.05(A) may personally § (limiting who Moreover, provision sub- ballot); Tex. Elec. an absent voter’s deliver stantially similar the laws in effect 86.006(a) only § (permitting Code Ann. Indiana, example, it other for states. ballot).2 personally voter to deliver a felony anyone a for to collect voter’s restric- Other are somewhat less states ballot, for mem- exceptions absentee they, permit tive than Arizona because household, the voter’s the voter’s bers early range people collect broader fact, designated certain elec- attorney many from voters but restrict ballots how officials, mail and carriers. Ind. Code can person ballots one collect 3-14-2-16(4). § Connecticut also restricts anyone from col- return. forbids Colorado voter, collection, permitting only more ballots. Colo. lecting Rev. ten voter, designee ill or or of an disabled l-7.5-107(4)(b); § Ga. Stat. Code Ann. family members voter’s immediate cf. 21-2-385(b) § .(prohibiting any person Conn. mail or an absentee ballot. return than ten assisting physically from more 9-140b(a), like- § Mexico Gen. Stat. New or illiterate electors preparing disabled voter, only the permits wise member ballot). prohibits any- their North Dakota or the family, voter’s immediate voter’s ballots, one than four collecting from more or caregiver to mail an absentee return 1-6-10,1. 16.1-07-08(1); § N.D. New Cent. Code § At Ann. ballot. N.M. Stat. least Ann, 19:63^4(a), § Missouri, Jersey, N.J. Stat. (Georgia, Ne- seven other states Minnesota, § Ann. 203B.08 vada, Carolina, Oklahoma, Ohio, Minn. Stat. North three; Arkansas, Texas) Ark. sbd. Code Ann. personal- similarly who can restrict 7-5-403," Nebraska, § Neb. Rev. Stat. ly deliver an absentee ballot 21-2-385(a) 32-943(2), Virginia, § § Va. Code Ann. West W. location. Ga. 3-3-5(k), pro- § (limiting may personally an Code two. South Dakota who deliver collecting ill more than designees anyone or dis- hibits from absentee ballot members); person in family notifying or Rev. one “the abled Mo. ballot without voters 115.291(2) § of all (restricting per- charge' who can Stat. ballot); messenger.” whom is a Codified sonally an absentee Nev. he S.D. deliver 293.330(4) § (making felony § it a 12-19-2.2. Rev. Stat. Laws . Moreover, family, delivery or had her or certain licenced 2 at least two states similar provisions recently. on the books Cali bed- companies until to mail or deliver absentee formerly (1996); fornia who could return mail limited Comp. 10 Ill. Ill. Stat lot. 5/19-6 family living or those ballots to the voter's 5/29-20(4). Comp. Illinois Stat. amended the same Code 3017. household. Cal. Elec. provision oth to let voters authorize year. It amended law earlier 10 Ill. ers mail deliver ballots. Legis. Cal. Illinois also Serv. Ch. 820. used (2015). Comp. Stat. 5/19-6 voter, felony anyone make but the his

417 512, 538, adopted slightly Ill.App.3d 284 Still other states have 810 Ill.Dec. N.E.2d (2004) 198 may (affirming different conviction for restrictions collect who violation); Maine, absentee ballot see also early Ga. California and for ballots. 21-2-385(b) § Code (providing for Ann. example, illegal make it to an collect ab- penalties up years to ten and a fine compensation. ballot 2016 sentee for Cal. $100,000 anyone for assisting more than Legis. (amending Serv. Ch. California 820 physically ten disabled illiterate § to anyone Election to Code 3017 enable electors). states, ballot, In those even if early collect provided they an ballot re- improperly, may collected be valid. See In no compensation); ceive 21-A Me. Rev. re Member Hill Rock Bd. Election of 791(2)(A) § (making Stat. Ann. it a crime Educ., Ohio 669 76 N.E.2d St.3d compensation collecting receive for ab- (1996) (holding 1122-23 that a ballot will ballots); see sentee also Fla. Stat. error). disqualified for technical § 104.0616(2)(making it a misdemeanor to collecting receive for compensation more Ill ballots); vote-by-mail than two N.D. Cent. right vote is to par- “[T]he 16.1-07-08(1) § (prohibiting Code a person ticipate, process electoral nec- compensation acting receive as an essarily integri- structured maintain agent elector); for an Code Tex. Elec. Ann. ty of system.” the democratic Burdick v. § (criminalizing compensation 86.0052 Takushi, 428, 441, schemes on the number of based ballots (1992). 245 2023 is L.Ed.2d H.B. well mailing). collected for range within of regulations that other Some laws a restric as stated I infirmity, states have enacted. no see early may how the return a voter statutory, constitutional or in Arizona’s ef- states, In ballot. those the voter risks hav prevent potential forts to for fraud in ing See, e.g., disqualified. early his I respectful- vote collection of Wrinn v. ballots. ly Dunleavy, Conn. dissent. A.2d (1982) (disqualifying order ballots and SMITH, N.R., Judge, dissenting: Circuit primary a new an unau when I, II, I join Judge Parts and III thorized absentee bal individual mailed dissent, along Judge O’Scannlain’s lots). states, Arizona, In other However, Bybee’s separate dissent. I write penalizes collecting statute person separately emphasize majority § See (making

ballot. Code 3-14-2-16 Ind. stay granting pending appeal, erred it a felony knowingly to a receive Appellants because cannot meet the stan 293.330(4) voter); § a from Nev. Rev. Stat. Heckler, by Lopez dard set forth v. (making felony it per for unauthorized F.2d 1432, 1435 ballot); sons to return an absentee Tex. stay for granting pend standard (making it Elec. Code 86.006 Ann. (1) ing appeal is well “the established: misdemeanor for person an unauthorized moving required party to show both a to possess twenty one between ballots probability of success merits felony possess twenty); more (2) irreparable injury”; possibility State, see Murphy also N.E.2d v. moving party “the must demonstrate (Ind. 2005) (affirming App. 594-96 Ct. legal questions are raised and that serious a charge denial of a motion dismiss hardships sharply tips balance of receipt favor”; (3) “strongly unauthorized a ballot from an consid- should voter); Id.; Deganutti, People “public v. interest.” see ere]’’ absentee the- also 770, 776, obligation to Braunskill, no the first had prong, Hilton (1987). prong. S.Ct. 2118, the second Id. 1076-77. reach L.Ed.2d 724 legal frame- Judge Ikuta laid next out ease, in order to determine whether for challenges work facial laws standard, and are have Appellants met Amend- under the Fourteenth First evaluate stay, to a “we must thus entitled considered Feldman’s chal- ments and dis overturning the arguments for [their] ap- lenges. properly Id. She at 1077-85. in preliminary of a] trict [denial court’s Anderson/Burdick, balancing test. plied F.2d at Lopez, 713 junction appeal.” See at As to the 1079-85. Fourteenth Id. court’s deni evaluate the district 1436. We claim, explained why Amendment she “the injunction, applying al preliminary of a clearly finding not err in court district did All. of review. abuse of discretion standard H.B, in- ‘significantly 2023 did not that Cottrell, F.3d Rockies v. Wild for ” voting.’ at crease the burdens Id. usual 2011). (9th re cannot Cir. We correctly applied 1079. She Crawford verse a district court’s decision unless analysis. Lastly, Judge that Id. at 1079-84. legal “on an decision was based erroneous authority appli- Ikuta the legal addressed finding clearly erroneous standard cable to the First Amendment claim and v. Lands (quoting fact.” Id. Council correctly “the determined that district 2008) (9th McNair, Cir. F.3d regulato- that Arizona’s court’s conclusion (en banc)). Here, court did the district jus- ry preventing voter fraud interests Thus, Ap that probable it not neither. that tifies minimal burden H.B. their pellants on the will succeed merits imposes rights under the associational appeal. Id. at 1084. test.” Anderson/Burdick here, I standards these applying Appellants that also failed establish wholeheartedly Judge Ikuta’s agree facts the district court’s decision as opinion in Feld three-judge panel majority “(1) (2) (3) implausible, or illogical, (9th Arizona, Cir. man v. 840 F.3d 1057 may that support without inferences challenges raise Appellants several from the facts in the record.” Id. at drawn 2023, including of the to H.B. violations Hinkson, v. (quoting United States 1965, 2;§ Rights the Four Voting Act of (en 2009) F.3d Amendment; teenth and the First Amend banc)). Judge Ikuta’s discussion the dis- ment. findings no trict court’s factual evidences thoroughly analyzed Appel- Judge Ikuta at abuse discretion. See id. 1068-85. on the merits lants’ likelihood success Having district court concluded that the Feldman, theory each to us. appealed See not holding Appellants did err evaluating at 1068-85. When failed demonstrate suc- likelihood court whether the district based its deci- merits, Ikuta con- Judge cess then stan- by applying legal sion an erroneous remaining issuing a sidered the factors dard, Judge properly applied Ikuta first I injunction. Id. at preliminary 1084-87. framework, legal adopted by the two-part agree Appellants. with her that have circuits, Voting resolving our sister irreparable harm flow established that will ex- Rights Act issue. Id. at 1068-80. She Arizona, enjoin from a because failure plained properly why the district they suffer violation of likely will applied legal authority. Id. 1080-83. statutory rights. their or constitutional See that, I agree because the district court Appellants id. at failed 1084-85. tips § 2 Appellants’ hardships claim failed show the balance found sharply in'their See 11 order or on favor. id. The ber resolu- ultimate finding many court’s noted, factual tion of these we have cases. As collectors) (who entrust ballots to do the facts these are hotly cases con- merely tested, is not clear er- so convenience line bright “[n]o separates ror. See id. The record does not reflect permissible regulation election-related hardship organizational plaintiffs from infringements.” unconstitutional Thus, Ari- reallocate See id. resources. Timmons Twin Area New Cities Par- hardship “preserving zona’s ballot secre- ty, 359 [117 S.Ct. fraud, cy influence, preventing ‘undue (1997). 589] L.Ed.2d immi- Given. the ” tampering, and voter intimidation’ the inadequate nence election and outweighed. has not been (quoting See id. time to resolve disputes, the factual our Miller v. Picacho Dist. Elementary Sch. today action shall necessity allow the No. 179 Ariz. 877 P.2d proceed election to injunc- ivithout an (1994) (en banc)). does Finally, this record suspending tion the voter identification public’s not evidence that interest rules. one

weighs way or the in other determin- added). (emphasis 5-6 Id. at ing this issue. See id. at 1085-87. words, In other even the if Ninth Circuit This error compounded further were the ultimate decision to en- issuing stay this on the eve of an election. join application voter identifica- Judge points As excellently O’Scannlain Purcell, “[g]iven rules the immi- dissent, out his when is pre- our court nence of the election inadequate request sented a state’s interfere to resolve the time factual disputes,” the laws, “just weeks before an elec- Court, Supreme necessity,” “of allowed out tion” “required weigh, we in addi- proceed the election to a stay without tion to the upon harms attendant issuance application of the voter identification injunction, or nonissuance of an consider- rules. Id. specific ations to election cases.” Purcell v. Gonzalez, 1, 4, I especially note the advice the con- (2006) curiam). con- (per L.Ed.2d These of Justice currence Stevens: provide siderations an additional reason Allowing proceed the election to without why grant- we should restrain ourselves enjoining provisions statutory at is- ing stay this election law such as cases provide sue with a will courts better agree I Judge one. ar- O’Scannlain’s on which judge their constitu- record guments many cases in his dis- cited tionality importance .... Given However, emphasizing sent this constraint. issues, constitutional Court wise- gives specific guidance Purcell itself to us ly action takes that will enhance the case, in this Supreme because the Court they likelihood will be resolved cor- specifically addressing Circuit a Ninth on the rectly basis of facts historical. grant injunction deal- decision when speculation. than rather There, with voter identification rules. Supreme explained: Court (Stevens, J., concurring). Id. if I at 6 Even express opin- agree majority,

We underscore that no were to with the issue, ion disposition, preliminary injunction here on the correct after I should full briefing argument, ap- would heed Justice advice and Stevens’s peals Septem- from District Arizona’s allow law to be evaluated Court’s I cannot speculation.1 rather facts opinion, majority which does

join the counsel. good heed

take America,

UNITED STATES Plaintiff-Appellee, — Fed.Appx. see opinion, For additional n , 2016 WL -— MOHAMUD, Mohamed Osman

Defendant-Appellant. 14-30217

No. of Appeals, Court

United States

Ninth Circuit. July

Argued Submitted Portland, Oregon 5, 2016

Filed December Elec- drop early today and on Early voting Octo- off ballots occurs from Day) likely greater result confu- through will ber November provide courts better Staying sion will not the enforcement H.B. 2023 (which constitutionality. persons record law’s late would allow date den.” at 381. The notes occurred, point the remedi rely tion has at which plaintiffs' on that briefs vote dilution Voting Rights no purpose al of the Act is arguing but denial cases that cases not vote cases, longer in vote required served. Plaintiffs dilution evidence not to establish statistical contrast, gather analyze Op. § I often and can violation. fn. Maj. 14.. See, e.g., quantitative why type § before an election. perceive of 2 case data no reason S.Ct, Thornburg Gingles, plaintiffs rely consequence to is of (1986). requires. argument § 2 itself L.Ed.2d about what other members opportunity it to do so. have less requires of a law that absence participate politi- the electorate to suggests plaintiffs that should The State representatives cal process to elect col- and organizations who data from those use 305; Veasey, their choice.” 830 F.3d at course, that action would Of lect ballots. N.C., League Women Voters aside, felony. leaving But be a now added). (emphasis at 240 It not does test way for the practical no there would be opportunity against “other of the members comparative data plaintiffs to collect “similarly electorate” are situated.” who highly unlikely it is method because Thus, analy- contrary to the district court’s organizational they competing force could sis, comparison similarly is not with supply And groups to collect and data. groups, situated white but rather with the likely yield not true a method would such voting If population as a whole. the district best, At show comparative results. would correct, assumption then liter- were court’s voters, minority and voters both white acy poll and tax would be constitu- statutes ballot collection as means have used they placed because the burdens tional that, disputes No one casting their ballots. equal- poor and blacks illiterate whites dispute the fact anyone seriously .nor does Instead, ly. Voting Rights Act focuses depen- minority especially citizens disproportionately place on the burdens dent on ballot collection has a means general comparison minorities Further, voting. past if were even data American voters population. Native n available, not it still would answer living on bur- different reservations query because the data court’s transportation mail access dens therefore gathered pre-rule, would may A than urban white voters. state assessing the not relevant as a means of requirements arguing evade impact. rule’s equally applies that it to a subset of white Third, acknowledged court the district .constituting percentage a minuscule difficulty obtaining the data because vote, the overall effect is white when often do public “election and other records minority voting. suppression data,” not- racial or ethnic include even if we the dis- And were take getting is no around this ed “[t]here value, analysis at it fails trict court’s face Nonetheless, problem.” held that the in this consideration the evidence in. required the statute still a threshold statis-

Case Details

Case Name: Leslie Feldman v. Arizona Sec'y of State's Ofc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 4, 2016

Citation: 843 F.3d 366

Docket Number: 16-16698

Court Abbreviation: 9th Cir.