MI FAMILIA VOTA; VOTO LATINO; LIVING UNITED FOR CHANGE IN ARIZONA; LEAGUE OF UNITED LATIN AMERICAN CITIZENS ARIZONA; ARIZONA STUDENTS’ ASSOCIATION; ADRC ACTION; INTER TRIBAL COUNCIL OF ARIZONA, INC.; SAN CARLOS APACHE TRIBE; ARIZONA COALITION FOR CHANGE; UNITED STATES OF AMERICA; PODER LATINX; CHICANOS POR LA CAUSA; CHICANOS POR LA CAUSA ACTION FUND; DEMOCRATIC NATIONAL COMMITTEE; ARIZONA DEMOCRATIC PARTY; ARIZONA ASIAN AMERICAN NATIVE HAWAIIAN AND PACIFIC ISLANDER FOR EQUITY COALITION; PROMISE ARIZONA; SOUTHWEST VOTER REGISTRATION EDUCATION PROJECT; TOHONO O‘ODHAM NATION; GILA RIVER INDIAN COMMUNITY; KEANU STEVENS; ALANNA SIQUIEROS; LADONNA JACKET v. ADRIAN FONTES, in his official capacity as Arizona Secretary of State; KRIS MAYES, Arizona Attorney General, in her official capacity as Arizona Attorney General; STATE OF ARIZONA; LARRY NOBLE, Apache County Recorder, in his official capacity; DAVID W. STEVENS, Cochise County Recorder, in his official capacity; PATTY HANSEN, Coconino County Recorder, in her official capacity; SADIE JO BINGHAM, Gila County Recorder, in her official capacity; SHARIE MILHEIRO, Greenlee County Recorder, in her official capacity; RICHARD GARCIA, La Paz County Recorder, in his official capacity; STEPHEN RICHER, Maricopa County Recorder, in his official capacity; KRISTI BLAIR, Mohave County Recorder, in her official capacity; MICHAEL SAMPLE, Navajo County Recorder, in his official capacity; GABRIELLA CAZARES-KELLY, Pima County Recorder, in her official capacity; SUZANNE SAINZ, Santa Cruz County Recorder, in her official capacity; RICHARD COLWELL, Yuma County Recorder, in official capacity; DANA LEWIS, Pinal County Recorder, in official capacity; POLLY MERRIMAN, Graham County Recorder, in her official capacity; JENNIFER TOTH, in her official capacity as Director of the Arizona Department of Transportation; MICHELLE BURCHILL, Yavapai County Recorder, in official capacity; WARREN PETERSEN, President of the Arizona Senate; BEN TOMA, Speaker of the Arizona House of Representatives; REPUBLICAN NATIONAL COMMITTEE; ARIZONA REPUBLICAN PARTY
No. 24-3188
United States Court of Appeals for the Ninth Circuit
August 1, 2024
D.C. No. 2:22-cv-00509-SRB, District of Arizona, Phoenix
ORDER
FOR PUBLICATION
Before: Kim McLane Wardlaw, Ronald M. Gould, and Patrick J. Bumatay, Circuit Judges.
Dissent by Judge Patrick J. Bumatay.
PER CURIAM:
On July 18, 2024, a motions panel of this court granted in part and denied in part Intervenors-Defendants-Appellants’ emergency motion to stay the district court‘s judgment. Dkt. 76. The motions panel issued a stay pending appeal as to “the portion of the [lower court‘s] injunction barring enforcement of
Certain non-U.S. Plaintiffs-Appellees filed an emergency motion for reconsideration of the partial stay before the panel assigned to decide the merits of this appeal, seeking relief “as soon as possible.” Dkt. 97. The State of Arizona and its Attorney General, who had opposed the issuance of the stay, do not oppose the motion for reconsideration. Dkt. 99, at 1; Dkt. 62, at 1. Intervenors-Defendants-Appellants oppose the motion for reconsideration. Dkt. 100.
Plaintiffs-Appellees’ emergency motion for reconsideration of the partial stay pending appeal (Dkt. 97) is GRANTED. We VACATE the motions panel‘s order to the extent it stays the district court‘s injunction barring enforcement of
A motion for reconsideration must “state with particularity the points of law or fact which, in the opinion of the movant, the Court has overlooked or misunderstood.”
must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in its favor.” Id. (quoting Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983)); see Manrique v. Kolc, 65 F.4th 1037, 1041 (9th Cir. 2023) (explaining that, “[e]ven with a high degree of irreparable injury, the movant must show ‘serious legal questions’ going to the merits” to warrant a stay) (citing Lopez, 713 F.2d at 1435-36).
We exercise our discretion to reconsider and vacate in part the motions panel‘s July 18 order. The motions panel‘s order failed to provide a reasoned analysis of the Nken factors with respect to
- Intervenors-Defendants-Appellants have not demonstrated “a strong likelihood of success on the merits.” Golden Gate Restaurant Ass‘n, 512 F.3d at 1115 (quotation omitted). The LULAC
Consent Decree remains in force and is binding on the parties. As the district court held, the Decree requires the Secretary of State to direct County Recorders to accept state form registration applications submitted without documentary proof of citizenship (“DPOC“) and to register such applicants consistent with the Decree. Mi Familia Vota v. Fontes, No. CV-22-00509, 2024 WL 2244338, at *1 (D. Ariz. May 2, 2024), ECF No. 720; Mi Familia Vota v. Fontes, 2024 WL 862406, at *2, *3 n.10 (D. Ariz. Feb. 29, 2024), ECF No. 707. Because it requires County Recorders to reject such applications (and in fact criminalizes those who knowingly fail to do so), A.R.S. § 16-121.01(C) directly contravenes the requirements of the Decree.
Unless the Decree is set aside or modified, Intervenors-Defendants-Appellants are unlikely to prevail. A consent decree approved by a court is an enforceable, final judgment with the force of res judicata. S.E.C. v. Randolph, 736 F.2d 525, 528 (9th Cir. 1984); see also Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 391 (1992) (“[A] consent decree is a final judgment that may be reopened only to the extent that equity requires.“). Thus, “the equitable decree based on the [parties‘] agreement is subject to the rules generally applicable to other judgments and decrees.” Gates v. Shinn, 98 F.3d 463, 468 (9th Cir. 1996). As a final judgment, a consent decree “may not lawfully be revised, overturned or refused faith and credit by another Department of Government.” Taylor v. United States, 181 F.3d 1017, 1024 (9th Cir. 1999) (en banc) (quotation omitted).
Intervenors-Defendants-Appellants offered no authority to the contrary before the motions panel. They contended only that the executive arms of the State could not, by agreeing to the LULAC Consent Decree, divest the Arizona Legislature of its sovereign power to change voting registration laws prospectively. Dkt. 50, at 12-14; see also Dkt. 100, 4-5 (raising similar arguments in opposition to the instant motion). But as the movants point out, the Consent Decree has no such effect. It cabins the authority of the parties to the Decree—the Arizona Secretary of State and Maricopa County Recorder—to act contrary to it. We recognized sitting en banc in Taylor that “[t]he Constitution‘s separation of legislative and judicial powers denies [Congress] the authority” to “enact[] retroactive legislation requiring an Article III court to set aside a final judgment.” 181 F.3d at 1026; see also id. at 1024 (“Congress may change the law and, in light of changes in the law or facts, a court may decide in its discretion to reopen and set aside a consent decree ... but Congress may not direct a court to do so with respect to a final judgment (whether or not based on consent) without running afoul of the separation of powers doctrine.“). Intervenors-Defendants-Appellants offer no authority to suggest that a state legislature may nullify a final judgment entered by an Article III court which Intervenors-Defendants-Appellants have not sought to set aside, modify, or otherwise terminate, and we see no reason why the same principle articulated in Taylor should not apply with equal force here. See Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“Chief Justice Marshall spoke for a unanimous Court in saying that: ‘If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.‘” (quoting United States v. Peters, 9 U.S. (5 Cranch) 115, 136 (1809))). That the court that entered the decree “did not retain jurisdiction, as it could have done,”
- Even assuming that Intervenors-Defendants-Appellants had raised “serious legal questions going to the merits” with respect to
A.R.S. § 16-121.01(C) , Golden Gate Restaurant Ass‘n, 512 F.3d at 1116 (quotation omitted), they did not show “a high degree of irreparable injury,” Manrique, 65 F.4th at 1041, or that the balance of equities otherwise tips “sharply” in their favor, Golden Gate Restaurant Ass‘n, 512 F.3d at 1116 (quotation omitted). Intervenor-Defendant-Appellant Republican National Committee (“RNC“) failed to show that the RNC will face irreparable harm absent a stay with respect toA.R.S. § 16-121.01(C) . The RNC alleged that the existence of voters who are registered to vote in federal elections (so called “federal-only voters“) inflicts irreparable harm upon it. Dkt. 100, at 17. But the RNC has not at any point explained why the use of the State Form to register applicants without accompanying DPOC to vote in federal elections, when identically situated applicants may register for at least federal elections without accompanying DPOC through the Federal Form even with a stay in place, inflicts an irreparable “competitive injury” on the RNC. Simply put, the RNC has not shown that enforcement ofA.R.S. § 16-121.01(C) specifically will prevent a likelihood of irreparable harm pending appeal.
Intervenors-Defendants-Appellants the President of the Arizona State Senate Warren Petersen and Speaker of the Arizona House of Representatives Ben Toma (together, “the Legislators“), assert that the district court‘s judgment inflicts an irreparable injury to the State‘s lawmaking interest by enjoining one of its duly enacted laws. Dkt. 100, at 13-14. The Arizona Attorney General, which represents the State in this action, see
The movants and the Attorney General dispute Intervenors-Defendants-Appellants’ authority to represent the State‘s interests in this litigation. See Dkt. 97, at 16; Dkt. 62, at 8. No party has disputed the Attorney General‘s authority. Without reaching the question whether Intervenors-Defendants-Appellants
- The movants contend that the remaining Nken factors strongly favor reconsideration and vacatur of the motions panel‘s order. We agree. A judicial stay is ordinarily a mechanism to preserve, not upset, the status quo pending appeal. Nken, 556 U.S. at 429. That principle applies with even greater force in the elections context, where court orders—especially “bare” orders offering “no explanation“—can “result in voter confusion and consequent incentive to remain away from the polls.” Purcell, 549 U.S. at 4-5. For that reason, the Supreme Court “has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat‘l Cmte. v. Democratic Nat‘l Cmte., 589 U.S. 423, 424 (2020) (per curiam).
The motions panel overlooked this fundamental principle of judicial restraint, resulting in manifest injustice to voters and elections officials alike. Since the LULAC Consent Decree in 2018, elections officials have registered otherwise qualified voters who used the State Form without DPOC as eligible to vote at least in federal elections. Those who submitted a State Form without DPOC yet had DPOC on file with the Motor Vehicles Division were registered for all elections whether they applied with the Federal or State Form. The motions panel‘s order upset the status quo, altering the voter registration rules just days before Arizona‘s July 30 primary and well into the registration timeline for the November general election. Parties, including the State of Arizona, its Attorney General, and its Secretary of State, sounded the alarm that such an intervention would “only create confusion and chaos for voters and election officials alike.” Dkt. 52, at 4.
Their warnings proved prescient. The practical effect of the stay has been to subject elections officials to a class 6 felony offense for knowingly failing to reject state form registration applications without accompanying DPOC. See
In Purcell, the Court made clear that the uncertainty engendered by judicial disruptions to the status quo in the midst of elections can and often will cause eligible voters to remain away from the polls. 549 U.S. at 4-5. The Court emphasized that “the possibility that qualified voters might be turned away from the polls” should “caution any ... judge to give careful consideration” before
intervening in a state‘s elections. Id. at 4. The motions panel‘s failure to adhere to the Supreme Court‘s warning in Purcell has caused a manifest injustice. Elections officials are now subject to conflicting criminal penalties, orders, and policies. Identically situated voter registration applicants are treated differently depending on the voter registration application form they pick up. Applicants whose DPOC is on file with the State and accessible to state officials will see their registrations denied for failure to provide DPOC to the State. Voters whose registrations were valid prior to the motions panel‘s stay order but would not be valid if they were submitted after the stay order could be forgiven for wondering whether their registrations remain valid in advance of the upcoming election. And those who seek to register to vote in Arizona in the lead up to the November election may be unwilling to do so given the confusing and uncertain policies applicable under the eleventh-hour intervention of the motions panel. All Arizonans must now navigate an arcane web of shifting and confusing rules that will without a doubt dissuade some who are otherwise eligible and willing from exercising the fundamental right to vote.
Under the circumstances, we are compelled to exercise our discretion to reconsider the motions panel‘s order and reinstate the status quo in Arizona as it has been since 2018 pending this expedited appeal. Accordingly, we VACATE the portion of the motions panel‘s order staying in part the judgment of the district court.
IT IS SO ORDERED.
Mi Familia Vota, et al. v. Petersen, et al., No. 24-3188; 24-3559; 24-4029
BUMATAY, J., dissenting
Election-law disputes are critical in a government based on popular sovereignty. After all, the outcomes of these cases determine how the people will choose who will govern them. But these cases are also the most perilous for courts. When any result may affect the election process, courts risk becoming entangled in political
Unfortunately, we abandon regularity here. Before a motions panel of our court, Intervenor-Appellants moved to stay a lower-court injunction. The motions panel unanimously granted it in part. Plaintiffs-Appellees then moved for reconsideration of the motions panel‘s order. Motions for reconsideration of a motions panel‘s order are not meant to be a second bite at the apple. On the contrary, they are highly irregular and strongly disfavored, primarily appropriate if there have been “[c]hanges in legal or factual circumstances” since the motions panel addressed the issue.
Yet facing identical legal and factual circumstances on an even more expedited basis, the majority now grants the motion and lifts the partial stay. What‘s so pressing that makes Plaintiffs-Appellees entitled to the extraordinary remedy of reconsideration when nothing has changed in the case? Why flirt with the perception that we have adjudicated this dispute on something other than its merits? The answer is unclear to me, as it undoubtably will be to those citizens planning to vote in Arizona‘s election. All the public can take away from this episode is that four judges of the Ninth Circuit have voted to partially stay the injunction here, while two other judges voted against it. The two judges prevail—not because of any special insight, but because of the luck of an internal Ninth Circuit draw.
Regardless, the motions panel had the answer right the first time. Given the majority‘s rush to act, I outline only the main arguments against granting reconsideration here. In short, Intervenor-Appellants have carried their burden on all four Nken factors: likelihood of success on the merits, irreparable harm, the balance of interests, and the public interest. Nken v. Holder, 556 U.S. 418, 434 (2009). Reviewing these factors, we should have denied the motion for reconsideration and declined to revisit the partial stay of the injunction.
For these reasons, I respectfully dissent.
I. Background
In Arizona, eligible residents may register to vote in all elections—federal, state, and local—using either a registration form created by the State (“State Form“) or one created by the United States Election Assistance Commission (“Federal Form“). Mi Familia Vota v. Fontes, No. CV-22-00509, 2024 WL 862406, at *2 (D. Ariz. Feb. 29, 2024). To vote in state and local elections, Arizona requires eligible voters to provide documentary proof of citizenship (“DPOC“), such as a birth certificate, driver‘s license, or U.S. passport. See
Plaintiffs-Appellees challenged this law and others in federal district court. The district court ruled that
Warren Peterson, in his official capacity as President of the Arizona State Senate; Ben Toma, in his official capacity as the Speaker of the Arizona House of Representatives; and the Republican National Committee (“Intervenor-Appellants“) moved for a partial stay of the district court‘s order, which the district court denied. Intervenor-Appellants then moved for a stay of the district court‘s injunction. A motions panel of our court partially granted the stay on July 18, 2024, permitting
A little more than a week later, on July 26, Plaintiffs-Appellees moved for reconsideration on an emergency basis via Ninth Circuit Rule 27-3. We ordered a greatly expedited response from Intervenor-Appellants due just a few days later, on July 29.
II. Motions for reconsideration are strongly disfavored.
To begin, motions for reconsideration are strongly disfavored by our court. See Ninth Cir. R. 27-10 Advisory Committee Note (explaining that motions for reconsideration “of orders entered by a motions panel are not favored by the Court“). Beyond general disfavor, our court‘s rules explain that a motion for reconsideration should be brought only if “in the opinion of the movant, the Court has overlooked or misunderstood” “points of law or fact,” or if there have been “[c]hanges in [the] legal or factual circumstances.” Ninth Cir. R. 27-10(a)(3).
Under the rules, our reconsideration‘s stringent standard hasn‘t been met. While “a motions panel‘s legal analysis, performed during the course of deciding an emergency motion for a stay, is not binding on later merits panels,” we are not adjudicating the merits at this stage. See Innovation Law Lab v. Wolf, 951 F.3d 1073, 1081 (9th Cir. 2020) (simplified) (emphasis added), vacated and remanded sub nom. Mayorkas v. Innovation L. Lab, 141 S. Ct. 2842 (2021). Freeing the merits panel to come to its own determination makes sense. A court at the merits stage has the benefit of lengthy briefing, oral argument, and (perhaps most importantly) time to thoroughly consider and research each issue. But a merits panel deciding a motion for reconsideration before the merits stage, as we do here, is no better informed or positioned to decide this issue than the motions panel. We face a similarly abbreviated
Plaintiffs-Appellees make a conclusory assertion that upholding the motions panel‘s order “will work a manifest injustice.” Plaintiffs-Appellees speak of the supposed “judicially created confusion” resulting from the motions panel‘s order. Such speculation isn‘t enough to meet our high reconsideration standard. First, none of this is new. Claims of confusion were brought directly to the motions panel. Second, that the 2023 Elections Procedures Manual (“EPM“) and the websites of the Arizona Secretary of State and county recorders have not yet been updated to reflect the motions panel‘s order (indeed, perhaps because they are awaiting the outcome of this expedited motion for reconsideration) does not indicate that any voters are actually confused. Third, all this is undercut by the Arizona Secretary of State‘s own admission that “the EPM may memorialize court rulings as of its adoption date, but to the extent such rulings are reversed or modified on appeal, the statutory requirements as interpreted by the court will control over any contrary provisions in the EPM.”
So our high standard for reconsideration is, on its own, enough to warrant denying this motion. But the motion is also wrong on the facts and the law. As I discuss below, the Nken factors all support the motions panel stay for
III. The Nken factors all favor issuing a partial stay.
We look at four factors when considering an application to stay a district court‘s injunction: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken, 556 U.S. at 434 (simplified). “The first two factors . . . are the most critical.” Id. Additionally, when the Government is a party to a case, as is the case here, “the balance of the equities and public interest factors merge.” Chamber of Com. v. Bonta, 62 F.4th 473, 481 (9th Cir. 2023).
The motions panel had it right the first time. Intervenor-Appellants satisfied the Nken standard for a stay pending appeal with respect to the portion of the injunction barring enforcement of
a. Likelihood of Success on the Merits
i. The LULAC decree does not bind the Arizona Legislature.
Plaintiffs-Appellees argue that the district court was right to enjoin the enforcement of
The notion that any action by a State executive-branch official may forever curtail a State legislature‘s lawmaking powers presents significant separation-of-powers concerns—concerns that even the district court realized constituted a “serious legal question.” For example, imagine a State‘s executive branch opposes a law passed by the Legislature; if a political ally sues challenging that law, the executive branch will be sorely tempted to settle the case by agreeing that the law is unenforceable. It seems doubtful that the executive branch can circumvent legislative authority in that and similar ways. And the Supreme Court has echoed this concern specifically with respect to consent decrees, recognizing that if they are not properly limited in scope, they have the potential to “improperly deprive future officials of their designated legislative and executive powers.” Horne v. Flores, 557 U.S. 433, 449-50 (2009) (simplified); see also Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement and Power Dist., 39 F. Supp. 3d 1051, 1055 (D. Ariz. 2014) (explaining that “political subdivisions” of the State are not bound by agreements or judgments to which the State is a party, absent specific language to the contrary).
While these separation-of-powers concerns would apply to any restriction of the Legislature‘s lawmaking powers, they‘re particularly alarming in the election-law context, where State legislatures have express constitutional authority to act. The Constitution provides that the “Times, Places, and Manner of holding Elections . . . shall be prescribed in each State by the Legislature thereof.”
These separation-of-powers concerns are likely what animate the many cases signifying that legislative acts must predominate over consent decrees, not the other way around. After all, consent decrees cannot be used to handcuff governments in perpetuity. As a general matter, consent decrees may need to give way to intervening changes in law, including legislative enactments. See, e.g., Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 388 (1992) (“[A] consent decree must of course be modified if . . . one or more of the obligations placed upon the parties has become impermissible under federal law,” and that modification may also be warranted “when the statutory or decisional law has changed to make legal what the decree was designed to prevent“); Agostini v. Felton, 521 U.S. 203, 215 (1997) (noting, in the context of consent decrees, that “[t]he court cannot be required to disregard significant changes in law . . . if it is satisfied that what it has been doing has been turned through changed circumstances into an instrument of wrong” (simplified)); League of Residential Neighborhood Advocates v. City of Los Angeles, 498 F.3d 1052, 1055 (9th Cir. 2007) (observing that a consent decree “cannot be a means for state officials to evade state law“); Keith v. Volpe, 118 F.3d 1386, 1393 (9th Cir. 1997) (explaining that parties to a consent decree “c[annot] agree to terms which would exceed their authority and
Especially because this motion is in emergency posture and requires rapid adjudication, concern for the separation of powers—particularly in the context of regulating elections—counsels against treating the LULAC decree as binding against the Arizona Legislature‘s ability to set election parameters through
ii. The NVRA does not preempt Arizona‘s DPOC requirement.
Because the LULAC decree offers no lawful basis for overriding Arizona‘s State Form, Plaintiffs-Appellees have to offer some alternative basis to defeat the motions panel‘s stay. Once again, Plaintiffs-Appellees fail to point to any argument satisfying our stringent standard for reconsideration. Instead, they offer an alternative holding of the district court (taking up less than three pages in a more than 100-page order)—that the NVRA preempts the State‘s otherwise valid authority in this area. Plaintiffs-Appellees’ contention fails on the text of the NVRA and our precedent. In short, the NVRA does not preempt Arizona‘s DPOC requirement for State Forms.
Start with the NVRA‘s plain language. To demonstrate preemption a litigant must point to “a constitutional text or a federal statute t[hat] assert[s]” preemptive force. Puerto Rico Dep‘t of Consumer Affs. v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988); see also Va. Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019) (lead opinion of Gorsuch, J.) (“Invoking some brooding federal interest or appealing to a judicial policy preference should never be enough to win preemption of a state law.“). So Congress‘s expressions are critical.
Plaintiffs-Appellees point to a few textual components of the NVRA to make their case.
To begin, the NVRA directs that “in the administration of voter registration for elections for Federal office, each State shall . . . ensure that any eligible applicant is registered to vote in an election . . . if the valid voter registration form of the applicant is” properly submitted, received, or accepted “not later than the lesser of 30 days, or the period provided by State law, before the date of the election.”
So what does a valid form look like? States must “accept and use” the Federal Form created by the federal government “for the registration of voters in elections for Federal office.”
That then brings us to
So where does this leave us? Rather simply, “state-developed forms may require information the Federal Form does not.” ITCA, 570 U.S. at 12. “States retain the flexibility to design and use their own registration forms, but the Federal Form provides a backstop: No matter what procedural hurdles a State‘s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.” Id. Moreover, the Court has specifically recognized “Arizona‘s constitutional authority to establish qualifications (such as citizenship) for voting” and thus to obtain relevant information. See id. at 15-16. So “[s]ince the power to establish voting requirements is of little value without the power to enforce those requirements . . . it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications.” Id. at 17.
Arizona has done exactly what the Court recognized as possible in ITCA. It has added a requirement to its own form to ensure its ability to verify citizenship. The district court nonetheless issued an injunction premised on a conflict between the NVRA and Arizona‘s proof-of-citizenship inquiry. Recall that
The failure of the district court to justify its holding, beyond that cursory statement, would itself validate the motions panel‘s stay. But the motions panel did not need to rely only on the district court‘s lack of justification. Our Circuit has in fact already resolved this question under similar circumstances.
More than fifteen years ago, we considered, in another extraordinary posture, an Arizona requirement for proof of citizenship as part of the registration process. Gonzalez v. Arizona, 485 F.3d 1041, 1046 (9th Cir. 2007). And we could not have been clearer. There, plaintiffs again argued
The district court‘s order cannot abrogate the plain import of ITCA and the even more specific reasoning in Gonzalez. At the very least, we shouldn‘t reconsider the motions panel‘s stay against the backdrop of those two precedents and decide that the district court‘s injunction should be reinstated in full. And Plaintiffs-Appellees’ arguments otherwise are beside the point. They rely on two out-of-circuit cases, one involving a different provision of the NVRA with a different standard, Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016), and an Administrative Procedure Act case deferentially reviewing an administrative determination of necessity, Kobach v. EAC, 772 F.3d 1183 (10th Cir. 2014). Neither detract from the principles of ITCA, our circuit‘s holding in Gonzalez, and the deficit of reasoning from the district court.
In the alternative, the district court noted, and now Plaintiffs-Appellees raise on reconsideration, that the NVRA might preempt the State Form under the limited circumstances when “public assistance agencies” distribute them. See Mi Familia Vota, 2024 WL 862406, at *39 (citing
In short, the deficit of reasoning to enjoin a state law justified the motions panel‘s stay. Meanwhile, text and on-point precedent further support the motions panel‘s order. To grant reconsideration under these circumstances is extraordinary.
iii. The Equal Protection Clause does not prevent Arizona from accepting two different registration forms.
Plaintiffs-Appellees also assert that the partial stay was improper because
Plaintiffs-Appellees’ invoke Bush v. Gore, 531 U.S. 98 (2000), to support their argument. But that doesn‘t work. Bush v. Gore,
But more generally, accepting the argument would violate our system of federalism in general and the division of authorities between federal and state governments over election matters in particular. The Constitution itself envisions different sets of rules for federal and state elections. Indeed, neither the Elections Clause nor the Electors Clause gives Congress authority to regulate state election procedures. This reflects the Supreme Court‘s understanding as well. The Court has made clear that “States retain the flexibility to design and use their own registration forms” and that “[t]hese state-developed forms may require information the Federal Form does not.” ITCA, 570 U.S. at 12. Nowhere did the Court suggest that the bare existence of differences between the State and Federal Forms’ requirements could give rise to an equal protection challenge. So this argument fails as a basis to reconsider the stay on an expedited basis.
b. Irreparable Harm
To start with, the degree of irreparable harm that Intervenor-Appellants Toma and Peterson (“Legislative Leaders“) must demonstrate to succeed is lessened because of their high likelihood of success. When considering whether the party seeking the stay will be irreparably harmed by the injunction, our court takes a sliding-scale approach to the analysis. Nat. Res. Def. Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir. 2007) (observing that the likelihood of success and irreparable harm “represent two points on a sliding scale“). “[T]he required degree of irreparable harm increases as the probability of success decreases.” Manrique v. Kolc, 65 F.4th 1037, 1041 (9th Cir. 2023). The inverse is also true. With high probabilities of success—as is the case here—the degree of irreparable harm that must be shown is lower.
But under any standard, the irreparable harm to the Legislative Leaders is obvious. By failing to stay the district court‘s injunction with respect to
Plaintiffs-Appellees assert that the Legislative Leaders are not the State and thus lack the authority to allege an irreparable harm to the State‘s sovereign interests. That‘s not the case. Begin with state law. See Berger v. N.C. State Conf. of the NAACP, 597 U.S. 179, 191 (2022) (explaining that courts must always respect “a State‘s chosen means of diffusing its sovereign powers among various branches and officials“). Arizona law grants the Legislative Leaders authority to contest an injunction suspending the Legislature‘s enactments. See
c. Public Interest/Balance of Equities
Finally, the joint balance-of-interests factor favors the Intervenor-Appellants. It is well-established that “[s]tates have ‘an interest in protecting the integrity, fairness, and efficiency of their ballots and election processes.‘” Mi Familia Vota v. Hobbs, 977 F.3d 948, 954 (9th Cir. 2020) (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997)). Equally fundamental is “a state‘s interest in running its elections without judicial interference.” League of Women Voters of Fla., Inc. v. Fla. Sec‘y of State, 32 F.4th 1363, 1372 (11th Cir. 2022) (citing Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurral)). This interest is strengthened by the Purcell doctrine, which “heightens the showing necessary . . . to overcome the State‘s extraordinarily strong interest in avoiding late, judicially imposed changes to its election laws and procedures.” Merrill, 142 S. Ct. at 881 (Kavanaugh, J., concurral).
Plaintiffs-Appellees are quick to point out that Purcell cuts against Intervenor-Appellants here because
But even so, Purcell does not help Plaintiffs-Appellees. As Justice Kavanaugh observed,
And Plaintiffs-Appellees do not demonstrate a countervailing interest that could challenge the State‘s interest to protect the integrity of its elections free from judicial interference. The district court found no “‘concrete evidence’ to corroborate that [Arizona‘s DPOC requirement] will in fact impede any qualified voter from registering to vote or staying on the voter rolls,” Mi Familia Vota, 2024 WL 862406 at *49 (quoting Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 201 (2008)), nor any evidence that Arizona‘s election-law statutes “impose an excessive burden on any specific subgroup of voters,” id. at *51.
The balance of interests favors Intervenor-Appellants.
IV. Conclusion
With the political nature of this case, we should be especially careful to avoid the use of unconventional or disfavored procedures. In my mind, that concern alone should have been enough to deny Plaintiffs-Appellees’ motion for reconsideration. But even so, the motions panel got the answer right. Intervenor-Appellants make a compelling showing of all the Nken factors, and so that panel‘s partial stay of the district court‘s injunction should stand.
For these reasons, I respectfully dissent from the grant of the motion for reconsideration.