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

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 28 2016
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LESLIE FELDMAN; LUZ No. 16-16698
MAGALLANES; MERCEDEZ HYMES;
JULIO MORERA; CLEO OVALLE; D.C. No. 2:16-cv-01065-DLR
PETERSON ZAH, Former Chairman and
First President of the Navajo Nation; THE
DEMOCRATIC NATIONAL OPINION
COMMITTEE; DSCC, AKA Democratic
Senatorial Campaign Committee; THE
ARIZONA DEMOCRATIC PARTY;
KIRKPATRICK FOR U.S. SENATE;
HILLARY FOR AMERICA,
Plaintiffs-Appellants,
BERNIE 2016, INC.,
Intervenor-Plaintiff-
Appellant,
v.
ARIZONA SECRETARY OF STATE’S
OFFICE; MICHELE REAGAN, in her
official capacity as Secretary of State of
Arizona; MARICOPA COUNTY BOARD
OF SUPERVISORS; DENNY BARNEY;
STEVE CHUCRI; ANDY KUNASEK;
CLINT HICKMAN; STEVE
GALLARDO, member of the Maricopa
County Board of Supervisors, in their
official capacities; MARICOPA COUNTY
RECORDER AND ELECTIONS
DEPARTMENT; HELEN PURCELL, in
her official capacity as Maricopa County
Recorder; KAREN OSBORNE, in her
official capacity as Maricopa County
Elections Director; MARK BRNOVICH,
in his official capacity as Arizona Attorney
General,
Defendants-Appellees,
THE ARIZONA REPUBLICAN PARTY,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted October 19, 2016
San Francisco, California
Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and Sandra S. Ikuta,
Circuit Judges.
Opinion by Judge Ikuta, Circuit Judge:
In April 2016, Leslie Feldman and other appellants1 brought an action in
1
The appellants here (plaintiffs below) are Leslie Feldman, Luz Magallanes,
Mercedez Hymes, Julio Morera, and Cleo Ovalle, registered Democratic voters in
Maricopa County, Arizona; Peterson Zah, former Chairman and First President of
the Navajo Nation and registered voter in Apache County, Arizona; the Democratic
National Committee; the DSCC, aka Democratic Senatorial Campaign Committee;
the Arizona Democratic Party; a committee supporting the election of Democratic
(continued...)
district court challenging Arizona House Bill 2023 (H.B. 2023), which precludes
individuals who do not fall into one of several exceptions (e.g., election officials,
mail carriers, family members, household members, and specified caregivers) from
collecting early ballots from another person. See 2016 Ariz. Legis. Serv. Ch. 5, § 1
(H.B. 2023) (West) (codified at Ariz. Rev. Stat. § 16-1005(H)–(I)). According to
Feldman, this state statute violates § 2 of the Voting Rights Act of 1965, 52 U.S.C.
§ 10301, the Fourteenth Amendment, and the First Amendment2 because, among
other things, it disproportionately and adversely impacts minorities, unjustifiably
burdens the right to vote, and interferes with the freedom of association. After the
district court denied Feldman’s motion for a preliminary injunction, Feldman filed
this emergency interlocutory appeal. Because the district court did not abuse its
discretion in denying the motion, we affirm.
I
1
(...continued)
United States Representative Ann Kirkpatrick to U.S. Senate; and Hillary for
America, a committee supporting the election of Hillary Clinton as President of the
United States. The intervenor-plaintiff/appellant is Bernie 2016, Inc., a committee
supporting the election of Bernie Sanders as President of the United States. For
convenience, we refer to the appellants as “Feldman.”
2
Because H.B. 2023 is a state law, the challenge technically arises under the
Fourteenth Amendment, which applies the First Amendment’s protections against
States and municipalities. See City of Ladue v. Gilleo, 512 U.S. 43, 45 & n.1
(1994).
3
The district court’s order denying the motion for a preliminary injunction
sets forth the facts in detail, Feldman v. Ariz. Sec’y of State’s Office, — F. Supp. 3d
—, No. CV-16-01065-PHX-DLR, 2016 WL 5341180 (D. Ariz. Sept. 23, 2016), so
we provide only a brief summary of the pertinent background facts and procedural
history. The district court’s factual findings are discussed in detail as they become
relevant to our analysis.
A
Arizona law permits “[a]ny qualified elector” to “vote by early ballot.” Ariz.
Rev. Stat. § 16-541(A).3 Early voting can occur by mail or in person at an on-site
early voting location in the 27 days before an election. See id. § 16-542. All
Arizona counties operate at least one on-site early voting location. Voters may
also return their ballots in person at any polling place without waiting in line, and
several counties additionally provide special drop boxes for early ballot
submission. Moreover, voters can vote early by mail, either for an individual
election or by having their names added to a permanent early voting list. An early
ballot is mailed to every person on that list as a matter of course no later than the
first day of the early voting period. Id. § 16-544(F). Voters may return their early
3
A “qualified elector” is any person at least eighteen years of age on or
before the date of the election “who is properly registered to vote.” Ariz. Rev.
Stat. § 16-121(A).
4
ballot by mail at no cost, but it must be received by 7:00 p.m. on election day. Id.
§§ 16-542(C); 16-548(A).
Since 1992, Arizona has prohibited any person other than the elector from
having “possession of that elector’s unvoted absentee ballot.” See 1991 Ariz.
Legis. Serv. Ch. 310, § 22 (S.B. 1390) (West). In 1997, the Arizona legislature
expanded that prohibition to prevent any person other than the elector from having
possession of any type of unvoted early ballot. See 1997 Ariz. Legis. Serv. Ch. 5,
§ 18 (S.B. 1003) (West) (codified at Ariz. Rev. Stat. § 16-542(D)). As the
Supreme Court of Arizona explained, regulations on the distribution of absentee
and early ballots advance Arizona’s constitutional interest in secret voting, see
Ariz. Const. art. VII, § 1, “by setting forth procedural safeguards to prevent undue
influence, fraud, ballot tampering, and voter intimidation.” Miller v. Picacho
Elementary Sch. Dist. No. 33, 179 Ariz. 178, 180 (1994) (en banc).
Arizona has long supplemented its protection of the early voting process
through the use of penal provisions, as set forth in section 16-1005 of Arizona’s
statutes. For example, since 1999 it has been a class 5 felony for a person
knowingly to mark or to punch an early ballot with the intent to fix an election.
See 1999 Ariz. Legis. Serv. Ch. 32, § 12 (S.B. 1227) (codified as amended at Ariz.
Rev. Stat. § 16-1005(A)). And in 2011, Arizona enacted legislation that made
5
offering to provide any consideration to acquire an early ballot a class 5 felony.
See 2011 Ariz. Legis. Serv. Ch. 105, § 3 (S.B. 1412) (codified at Ariz. Rev. Stat.
§ 16-1005(B)). That same legislation regulated the process of delivering “more
than ten early ballots to an election official.” See id. (formerly codified at Ariz.
Rev. Stat. § 16-1005(D)).
In 2016, Arizona again revised section 16-1005 by enacting H.B. 2023 to
regulate the collection of early ballots. This law added the following provisions to
the existing statute imposing penalties for persons abusing the early voting process:
H. A person who knowingly collects voted or unvoted early ballots
from another person is guilty of a class 6 felony. An election official,
a United States postal service worker or any other person who is
allowed by law to transmit United States mail is deemed not to have
collected an early ballot if the official, worker or other person is
engaged in official duties.
I. Subsection H of this section does not apply to:
1. An election held by a special taxing district formed
pursuant to title 48 for the purpose of protecting or
providing services to agricultural lands or crops and that
is authorized to conduct elections pursuant to title 48.
2. A family member, household member or caregiver of
the voter. For the purposes of this paragraph:
(a) “Caregiver” means a person who
provides medical or health care assistance to
the voter in a residence, nursing care
institution, hospice facility, assisted living
6
center, assisted living facility, assisted living
home, residential care institution, adult day
health care facility or adult foster care home.
(b) “Collects” means to gain possession or
control of an early ballot.
(c) “Family member” means a person who
is related to the voter by blood, marriage,
adoption or legal guardianship.
(d) “Household member” means a person
who resides at the same residence as the
voter.
Ariz. Rev. Stat. § 16-1005(H)–(I). Thus, this amendment to section 16-1005
makes it a felony for third parties to collect early ballots from voters unless the
collector falls into one of many exceptions. See id. The prohibition does not apply
to election officials acting as such, mail carriers acting as such, any family
members, any persons who reside at the same residence as the voter, or caregivers,
defined as any person who provides medical or health care assistance to voters in a
range of adult residences and facilities. Id. § 16-1005(I)(2). H.B. 2023 does not
provide that ballots collected in violation of this statute are disqualified or
disregarded in the final election tally.
Before H.B. 2023’s enactment, third-party early ballot collection was
available to prospective voters as an additional and convenient means of
7
submitting a ballot. It was also an important part of the Democratic get-out-the-
vote strategy in Arizona. Since at least 2002, the Arizona Democratic Party has
collected early ballots from its core constituencies, which it views to include
Hispanic, Native American, and African American voters. According to Feldman,
H.B. 2023’s limitation on third-party ballot collection will require the Democratic
Party to retool its get-out-the-vote efforts, for example by increasing voter
transportation to polling locations and revising its training scripts to focus on early
in-person voting. This, in turn, will require the party to divert resources from
projects like candidate promotion to more direct voter outreach to ensure that
voters are either casting early ballots in person or mailing their ballots on time.
B
Feldman sued Arizona4 in April 2016 alleging: (1) a violation of § 2 of the
Voting Rights Act on account of H.B. 2023’s disparate adverse impact on voting
4
The appellees here (defendants below) are the Arizona Secretary of State’s
Office; Arizona Secretary of State Michele Reagan in her official capacity; the
Maricopa County Board of Supervisors; members of the Maricopa County Board
of Supervisors Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and
Steve Gallardo in their official capacities; the Maricopa County Recorder and
Elections Department; Maricopa County Recorder Helen Purcell and Maricopa
County Elections Director Karen Osbourne in their official capacities; and Arizona
Attorney General Mark Brnovich in his official capacity. The intervenor-
defendant/appellee is the Arizona Republican Party. For convenience, we refer to
the appellees as “Arizona,” where appropriate, and otherwise use their individual
names.
8
opportunities for Hispanics, African Americans, and Native Americans, (2) a
denial of equal protection through unjustifiable burdening of the right to vote, (3) a
denial of equal protection through disparate treatment, (4) a violation of the First
Amendment right to freedom of association, and (5) a violation of the First and
Fourteenth Amendments through the “fencing out” of Democratic voters.
In June, Feldman moved for a preliminary injunction prohibiting the
enforcement of H.B. 2023. After full briefing, the district court denied the motion
on September 23, 2016, on the ground that Feldman was not likely to succeed on
the merits of any of her claims and had therefore also not shown a likelihood of
irreparable harm. As to the § 2 claim, the district court reviewed the totality of the
evidentiary record and found no evidence of a cognizable disparity between
minority and non-minority voters. The district court held that Feldman was
unlikely to succeed on her Fourteenth Amendment claim because H.B. 2023’s
burden on voting was minimal and justified by the State’s interests in preventing
absentee voter fraud and the perception of fraud. As to Feldman’s First
Amendment claims, the district court held that collecting ballots is not an
expressive activity and that even if it were, the State’s regulatory interests were
sufficient to justify the slight burden that H.B. 2023 imposes. The district court
likewise ruled that Feldman was unlikely to succeed on her partisan fencing claim.
9
Feldman filed a timely notice of interlocutory appeal on the same day that
the district court entered its order, and a few days later she filed an emergency
motion in the district court to stay its order and enjoin the enforcement of H.B.
2023 pending appeal. The district court noted that the standard for obtaining an
injunction pending appeal was the same as the standard for obtaining a preliminary
injunction and denied the motion because Feldman had not shown that she was
likely to succeed on the merits, Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
22 (2008), or that “there are serious questions going to the merits” and “the balance
of hardships tips sharply in the plaintiff’s favor.” All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
Feldman filed an emergency motion with this court for an injunction
pending appeal and for an expedited appeal. On October 14, a motions panel
denied the former request, but granted the latter. The parties were directed to file
simultaneous merits briefs by October 17, and the appeal was argued orally on
October 19.5
II
5
In addition to this appeal, Feldman appealed another of the district court’s
orders denying a separate motion to enjoin preliminarily other election practices
challenged in the complaint. That appeal has similarly been expedited and will be
the subject of a separate disposition. See Feldman v. Arizona Sec’y of State’s
Office, No. 16-16865, — F.3d — (9th Cir. 2016).
10
We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C.
§ 1292(a)(1). On an appeal from the denial of a preliminary injunction, we do not
review the underlying merits of the claims. Sw. Voter Registration Educ. Project
v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). Instead,
“[o]ur review is limited and deferential,” id., and we must affirm the district court’s
order unless the district court abused its discretion. Hendricks v. Bank of Am.,
N.A., 408 F.3d 1127, 1139 (9th Cir. 2005).
Our abuse-of-discretion analysis proceeds in two steps. See Gilman v.
Schwarzenegger, 638 F.3d 1101, 1105–06 (9th Cir. 2011) (citing United States v.
Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc)). At step one, we ask
whether the district court “based its ruling on an erroneous view of the law,” Bay
Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730
(9th Cir. 1999), reviewing the district court’s interpretation of underlying legal
principles de novo, Shelley, 344 F.3d at 918. We then ask whether the district
court’s application of the legal standard was illogical, implausible, or otherwise
without support in inferences that may be drawn from the facts in the record.
Hinkson, 585 F.3d at 1262. “We review findings of fact for clear error.” Shell
Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir. 2013). “[A]s
long as the district court got the law right, it will not be reversed simply because
11
the appellate court would have arrived at a different result if it had applied the law
to the facts of the case.” Id. (quoting Thalheimer v. City of San Diego, 645 F.3d
1109, 1115 (9th Cir. 2011)).6
A preliminary injunction is “an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter,
555 U.S. at 22. The standard to obtain such relief is accordingly stringent: “A
plaintiff seeking a preliminary injunction must establish that he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
6
The dissent suggests that the district court’s factual findings are entitled to
less weight here because “the district court did not conduct any evidentiary
hearings to resolve disputed factual issues” and “the parties’ submissions were by
affidavit.” See Dissent at 3 n.1. Our review of factual findings, however, does not
change based on the nature of the evidence. “Findings of fact, whether based on
oral or other evidence, must not be set aside unless clearly erroneous.” Fed. R.
Civ. P. 52(a)(6); see also Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985) (“Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous. This is so even when the district
court’s findings do not rest on credibility determinations, but are based instead on
physical or documentary evidence and inferences from other facts.” (citations
omitted)). It is immaterial that the fact-finding occurred here at the preliminary
injunction stage; Rule 52(a)(6) by its terms applies to all findings of fact, which
necessarily includes the findings of fact that “the court must . . . state” to support
denial of an interlocutory injunction, see Fed. R. Civ. P. 52(a)(2). See Anderson,
470 U.S. at 574 (“Rule 52(a) ‘does not make exceptions or purport to exclude
certain categories of factual findings from the obligation of a court of appeals to
accept a district court’s findings unless clearly erroneous.’” (quoting Pullman-
Standard v. Swint, 456 U.S. 273, 287 (1982))).
12
injunction is in the public interest.” Id. at 20. A plaintiff must make a showing as
to each of these elements, although in our circuit “if a plaintiff can only show that
there are ‘serious questions going to the merits’—a lesser showing than likelihood
of success on the merits—then a preliminary injunction may still issue if the
‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter
factors are satisfied.” Shell Offshore, 709 F.3d at 1291. “That is, ‘serious
questions going to the merits’ and a balance of hardships that tips sharply towards
the plaintiff can support issuance of a preliminary injunction, so long as the
plaintiff also shows that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” All. for the Wild Rockies, 632 F.3d at 1135.
When faced with a request to interfere with a state’s election laws “just
weeks before an election,” federal courts are “required to weigh, in addition to the
harms attendant upon issuance or nonissuance of an injunction, considerations
specific to election cases.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam).
These considerations often counsel restraint. In the context of legislative
redistricting, for example, the Supreme Court has long cautioned that “where an
impending election is imminent and a State’s election machinery is already in
progress, equitable considerations might justify a court in withholding the granting
of immediately effective relief . . . even though the existing apportionment scheme
13
was found invalid.” Reynolds v. Sims, 377 U.S. 533, 585 (1964). Similarly, the
Supreme Court has declined to order the printing of new ballots at a “late date”
even where the existing ballots were held to have unconstitutionally excluded
certain candidates. Williams v. Rhodes, 393 U.S. 23, 34 (1968). We have also
declined on equitable grounds to interfere with the mechanics of fast-approaching
elections. See Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012) (staying a
district court’s injunction “given the imminent nature of the election”); Shelley,
344 F.3d at 919 (declining to enjoin an imminent recall election). And we are not
alone in doing so. See, e.g., Veasey v. Abbott, 830 F.3d 216, 243 (5th Cir. 2016)
(en banc) (“[T]he district court should fashion an appropriate remedy in accord
with its findings; provided, however, that any remedy will not be made effective
until after the November 2016 election.”); Veasey v. Perry, 769 F.3d 890, 895 (5th
Cir. 2014) (staying an injunction “in light of the importance of maintaining the
status quo on the eve of an election”); Colon-Marrero v. Conty-Perez, 703 F.3d
134, 139 n.9 (1st Cir. 2012) (noting that “even where plaintiff has demonstrated a
likelihood of success, issuing an injunction on the eve of an election is an
extraordinary remedy with risks of its own”); Serv. Emps. Int’l Union Local 1 v.
Husted, 698 F.3d 341, 345 (6th Cir. 2012) (“As a general rule, last-minute
injunctions changing election procedures are strongly disfavored.”); Ne. Ohio
14
Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1012 (6th Cir. 2006) (vacating
in part a temporary restraining order that “needlessly creates disorder in electoral
processes”).
III
With these principles in mind, we turn to our review of the district court’s
order denying Feldman’s motion for a preliminary injunction against the
enforcement of H.B. 2023. On appeal, Feldman argues that the district court erred
in concluding that she was unlikely to succeed on her Voting Rights Act,
Fourteenth Amendment, and First Amendment claims.7 We consider each of these
arguments in turn.
A
We first consider Feldman’s claim that H.B. 2023 violates § 2 of the Voting
Rights Act.
1
“Inspired to action by the civil rights movement,” Congress enacted the
7
Feldman does not raise the claim that H.B. 2023 is invalid because it was
intended to suppress votes based on partisan affiliation or viewpoint, i.e., a theory
of prohibited partisan fencing.
15
Voting Rights Act of 1965 to improve enforcement of the Fifteenth Amendment.8
Shelby County v. Holder, 133 S. Ct. 2612, 2619 (2013). Section 5 of the Act
prevented states from making certain changes in voting procedures unless those
changes obtained “preclearance,” meaning they were approved by either the
Attorney General or a court of three judges. Id. at 2620. Section 2 of the Act
forbade all states from enacting any “standard, practice, or procedure . . . imposed
or applied . . . to deny or abridge the right of any citizen of the United States to
vote on account of race or color.” Id. at 2619 (quoting Voting Rights Act of 1965,
§ 2, 79 Stat. 437).
“At the time of the passage of the Voting Rights Act of 1965, § 2, unlike
other provisions of the Act, did not provoke significant debate in Congress because
it was viewed largely as a restatement of the Fifteenth Amendment.” Chisom v.
Roemer, 501 U.S. 380, 392 (1991). In 1980, a plurality of the Supreme Court held
that the Fifteenth Amendment, and therefore the Voting Rights Act, were violated
only if there was intentional discrimination on account of race. City of Mobile v.
Bolden, 446 U.S. 55, 60–62 (1980) (plurality opinion).
8
The Fifteenth Amendment provides that “[t]he right of citizens of the
United States to vote shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of servitude,” and authorizes
Congress to enforce the provision “by appropriate legislation.” U.S. Const. amend.
XV.
16
In response to Bolden, “Congress substantially revised § 2 to make clear that
a violation could be proved by showing discriminatory effect alone and to establish
as the relevant legal standard the ‘results test,’” applied by the Supreme Court in
White v. Regester, 412 U.S. 755 (1973), and by other federal courts before Bolden.
Thornburg v. Gingles, 478 U.S. 30, 35 (1986). Opinions decided before Bolden
had addressed “vote dilution” claims, that is, challenges to practices that diluted a
minority group’s voting power. See Shaw v. Reno, 509 U.S. 630, 641 (1993). In
amending § 2, Congress acted to “prohibit legislation that results in the dilution of
a minority group’s voting strength, regardless of the legislature’s intent.” Id.
(emphasis omitted); see also Gingles, 478 U.S. at 47–51. Section 2 also applied to
“vote denial” claims, meaning challenges to practices that denied citizens the
opportunity to vote, such as literacy tests.
As amended in the 1982 amendments, Section 2 of the Voting Rights Act
provides:
§10301. Denial or abridgement of right to vote on account of race or
color through voting qualifications or prerequisites; establishment of
violation
(a) No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State or
political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to vote on
account of race or color, or in contravention of the guarantees set forth
in section 10303(f)(2) of this title, as provided in subsection (b).
17
(b) A violation of subsection (a) is established if, based on the totality
of circumstances, it is shown that the political processes leading to
nomination or election in the State or political subdivision are not
equally open to participation by members of a class of citizens
protected by subsection (a) in that its members have less opportunity
than other members of the electorate to participate in the political
process and to elect representatives of their choice.
52 U.S.C. § 10301.
The Supreme Court interpreted this language in Thornburg v. Gingles, 478
U.S. 30. Gingles explained that to make out a § 2 violation, a plaintiff must show
that “under the totality of the circumstances, a challenged election law or
procedure had the effect of denying a protected minority an equal chance to
participate in the electoral process.” Id. at 44 n.8. The “totality of the
circumstances” includes factors that the Senate derived from cases decided before
Bolden. See id.9 As summarized by the Court, “[t]he essence of a § 2 claim is that
9
As explained in Gingles, the relevant factors include:
1. the extent of any history of official discrimination in the state or
political subdivision that touched the right of the members of the
minority group to register, to vote, or otherwise to participate in the
democratic process;
2. the extent to which voting in the elections of the state or political
subdivision is racially polarized;
3. the extent to which the state or political subdivision has used
unusually large election districts, majority vote requirements,
anti-single shot provisions, or other voting practices or procedures
that may enhance the opportunity for discrimination against the
(continued...)
18
a certain electoral law, practice, or structure interacts with social and historical
conditions to cause an inequality in the opportunities enjoyed by black and white
voters to elect their preferred representatives.” Id. at 47.
Although many courts have analyzed vote dilution claims, “there is little
authority on the proper test to determine whether the right to vote has been denied
or abridged on account of race.” Veasey v. Abbott, 830 F.3d at 244 (emphasis
9
(...continued)
minority group;
4. if there is a candidate slating process, whether the members of the
minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or
political subdivision bear the effects of discrimination in such areas as
education, employment and health, which hinder their ability to
participate effectively in the political process;
6. whether political campaigns have been characterized by overt or
subtle racial appeals;
7. the extent to which members of the minority group have been
elected to public office in the jurisdiction.
Additional factors that in some cases have had probative value as part
of plaintiffs’ evidence to establish a violation are:
whether there is a significant lack of responsiveness on the part of
elected officials to the particularized needs of the members of the
minority group.
whether the policy underlying the state or political subdivision’s use
of such voting qualification, prerequisite to voting, or standard,
practice or procedure is tenuous.
478 U.S. at 36–37 (internal quotation marks omitted). The Supreme Court has
stated that another relevant factor is “[a] State’s justification for its electoral
system.” Houston Lawyers’ Ass’n v. Attorney Gen. of Tex., 501 U.S. 419, 426–27
(1991).
19
omitted); see also Ohio Democratic Party v. Husted, — F.3d —, No. 16-3561,
2016 WL 4437605 (6th Cir. Aug. 23, 2016).10 Recently, the Fourth, Fifth, and
Sixth Circuits (and, in part, the Seventh Circuit) have adopted a two-part
framework, based on the text of § 2 and the Supreme Court’s guidance in Gingles.
The test is as follows:
[1] [T]he challenged standard, practice, or procedure must impose a
discriminatory burden on members of a protected class, meaning that
members of the protected class have less opportunity than other members of
the electorate to participate in the political process and to elect
representatives of their choice, [and]
[2] [T]hat burden must in part be caused by or linked to social and historical
conditions that have or currently produce discrimination against members of
the protected class.
10
Vote dilution can occur, for instance, where a practice has the effect of
reducing or nullifying “minority voters’ ability, as a group, to elect the candidate of
their choice,” Shaw, 509 U.S. at 641 (internal quotation marks omitted), and
typically involves different arguments and evidence than in vote denial claims. For
instance, Gingles explained that to prove that use of multimember districts gives
minorities less opportunity to elect representatives of their choice in violation of §
2, a plaintiff would generally have to demonstrate: (1) that the minority group at
issue is both “sufficiently large and geographically compact to constitute a
majority in a single-member district” and “politically cohesive,” and (2) that “the
white majority votes sufficiently as a bloc to enable it—in the absence of special
circumstances, such as the minority candidate running unopposed—usually to
defeat the minority’s preferred candidate.” 478 U.S. at 50–51 (citations omitted).
Such evidence would generally not be applicable to a claim that a specific practice
unequally burdens the right to participate in the political process (a vote denial
claim).
20
League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir.
2014); Veasey v. Abbott, 830 F.3d at 244; Ohio Democratic Party, 2016 WL
4437605 at *13–14; Frank v. Walker, 768 F.3d 744, 754–55 (7th Cir. 2014)
(adopting the test “for the sake of argument”).
We agree with this two-part framework, which is consistent with Supreme
Court precedent, our own precedent, and with the text of § 2. Under the first
prong, a plaintiff must show that the challenged voting practice results in members
of a protected minority group having less opportunity than other members of the
electorate to participate in the political process. Gonzalez v. Arizona, 677 F.3d
383, 405 (9th Cir. 2012) (en banc) (citing Smith v. Salt River Project Agric.
Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir. 1997)). This language
“encompasses Section 2’s definition of what kinds of burdens deny or abridge the
right to vote.” Veasey v. Abbott, 830 F.3d at 244. Section 2(a) prohibits a state or
political subdivision from imposing any “voting qualification or prerequisite to
voting” or other “standard, practice, or procedure” in a way that “results in a denial
or abridgement” of any U.S. citizen’s right to vote on account of race, color, or
membership in “a language minority group,” 52 U.S.C. § 10303(f), “as provided in
subsection (b).” Id. § 10301(a). Subsection (b), in turn, provides that a plaintiff
can establish a violation of § 2(a) if “based on the totality of circumstances,” the
21
“political processes leading to nomination or election in the State or political
subdivision are not equally open to participation” by members of a protected class
“in that its members have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of their choice.” Id.
§ 10301(b).
In interpreting this first prong, we have held that “a bare statistical showing
of disproportionate impact on a racial minority does not satisfy the § 2 ‘results’
inquiry.” Salt River, 109 F.3d at 595 (emphasis omitted). Rather, “Section 2
plaintiffs must show a causal connection between the challenged voting practice
and [a] prohibited discriminatory result.” Id. As explained by the Sixth Circuit, a
“challenged standard or practice causally contributes to the alleged discriminatory
impact by affording protected group members less opportunity to participate in the
political process.” Ohio Democratic Party, 2016 WL 4437605, at *13.
The second prong “draws on the Supreme Court’s guidance in Gingles,”
Veasey v. Abbott, 830 F.3d at 245, which explains the language in § 2(b) requiring
a plaintiff to show a violation of the Act “based on the totality of circumstances.”
52 U.S.C. § 10301(b). Under this second prong, the plaintiff must show that the
challenged practice interacted with racial discrimination “to cause an inequality in
the opportunities enjoyed by [minority] and [non-minority] voters to elect their
22
preferred representatives.” Gingles, 478 U.S. at 47; see also Gonzalez, 677 F.3d at
405–06. In Gonzalez, we did not have occasion to reach this second step because
the plaintiff had adduced no evidence of a causal connection between the
challenged photo ID law and a disproportionate burden on minorities. 677 F.3d at
407. If a plaintiff adduces no evidence that the challenged practice places a burden
on protected minorities that causes them to have “less opportunity than other
members of the electorate to participate in the political process and to elect
representatives of their choice,” 52 U.S.C. § 10301(b), there is no § 2 violation
“whether or not” the challenged practice is “interacting with the history of
discrimination” at the second prong of the test, Gonzalez, 677 F.3d at 407.
However, we agree with our sister circuits that to show a § 2 violation, a plaintiff
must establish that the challenged practice imposes a disproportionate burden on
minorities compared to non-minorities, and that the challenged law interacts with
social and historical conditions that have produced discrimination to cause
minorities to have fewer opportunities to participate in the electoral process. See
League of Women Voters of N.C., 769 F.3d at 240; Veasey v. Abbott, 830 F.3d at
244; Ohio Democratic Party, 2016 WL 4437605, at *13–14.
The district court’s legal determinations are reviewed de novo, Gonzalez,
677 F.3d at 406, but we defer to “the district court’s superior fact-finding
23
capabilities,” and review its factual findings for clear error, Salt River, 109 F.3d at
591. In analyzing the first prong of a § 2 claim, the district court has the primary
responsibility for determining “based ‘upon a searching practical evaluation of the
past and present reality,’. . . whether the political process is equally open to
minority voters.” Id. (quoting Gingles, 478 U.S. at 79). At the second prong of a
§ 2 claim, the district court must make the “ultimate finding whether, under the
totality of the circumstances, the challenged practice violates § 2.” Gonzalez, 677
F.3d at 406. This “ultimate finding” is a question of fact that we review for clear
error.11 Id.
2
This case raises a vote denial claim, in that Feldman claims that H.B. 2023’s
restriction on the use of certain third-party ballot collectors denies or abridges
11
The dissent does not dispute that under Gonzalez, the ultimate question is
one of fact. Dissent at 3 n.1. Yet, the dissent argues that the district court’s
assessment of the likelihood of success on the merits of this ultimate question
should be reviewed de novo because we are at the preliminary injunction stage, and
the question is a mixed question of law and fact. See id. We disagree. Our
conclusion that the clear error standard applies in reviewing a trial court’s
determination at the merits stage is equally applicable at the preliminary injunction
stage. See, e.g., Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th Cir.
2014) (holding, in an appeal from an order denying a motion for a preliminary
injunction, that the clear error standard applies to the district court’s determination
concerning likelihood of confusion, a mixed question of law and fact, because we
had previously held that this standard was applicable to such determinations at the
merits stage).
24
minorities’ opportunity to vote. As to the first prong of a § 2 claim, Feldman
argues that H.B. 2023 caused minority group members to have less opportunity to
participate in the political process than non-minorities. Feldman bases this claim
on a multi-step argument. First, Feldman points to evidence in the record that
minorities are statistically less likely than non-minorities to have access to a
vehicle, are more likely to have lower levels of education and English proficiency
than non-minorities, are more likely to suffer from health problems than non-
minorities, are more likely to have difficult financial situations than non-
minorities, and are more likely than non-minorities to rent houses rather than own
them, which in turn makes them more likely to move than homeowners. Second,
she argues that each of these differences between minorities and non-minorities
shows that minorities must rely on ballot collection by third parties more than non-
minorities because minorities have less ability to make use of other alternative
means of voting (such as voting by mail or in person). According to Feldman, this
evidence shows that the burdens of H.B. 2023 fall more heavily on minorities than
non-minorities. Feldman further contends that she satisfied the second prong of
the § 2 test by introducing substantial evidence supporting eight of the nine Senate
Factors.
The district court rejected this argument at the first prong of the § 2 test
25
based on its determination that Feldman failed to show that H.B. 2023 will cause
protected minorities to have less electoral opportunities than non-minorities. The
district court based its conclusion on both a per se legal rule and on its review of
the evidence. First, the district court held that Feldman failed to provide any
quantitative or statistical data showing that H.B. 2023’s rule precluding the use of
certain third-party ballot collectors had a disparate impact on minorities compared
to the impact on non-minorities. The district court determined that as a matter of
law, such data was necessary in order to establish a § 2 violation. Feldman does
not dispute that she did not provide any direct data on the use of third-party ballot
collectors,12 but argues such data is not necessary to show a disproportionate
impact on minorities, and so the district court’s ruling to the contrary was legal
12
Feldman contends that her failure to adduce evidence that ballot collection
restrictions place a heavier burden on minorities than non-minorities should be
excused because Arizona failed to track how early ballots are returned. As
plaintiff, however, Feldman has the obligation of carrying her burden of proof. See
Gingles, 478 U.S. at 46. Moreover, the record indicates that Feldman had equal
ability to generate the required data. Early ballots have been collected in Arizona
since at least 2002, and surveys could have determined the racial composition of
voters who rely on others to collect their early ballot in Arizona. Moreover, the
Arizona Democratic Party admits that collecting early votes has been an “integral
part of the Arizona Democratic Party’s get-out-the-vote strategy” since at least
2002. Neither the Arizona Democratic Party nor any other organizational plaintiff
has explained why it could not have compiled data on the race of the voters
utilizing ballot collection given that the organizations collecting ballots appear to
be in the best position to gather such information.
26
error.
While § 2 itself does not require quantitative evidence, past cases suggest
that such evidence is typically necessary to establish a disproportionate burden on
minorities’ opportunity to participate in the political process.13 See, e.g., Veasey v.
Abbott, 830 F.3d at 244 (noting that “courts regularly utilize statistical analyses to
discern whether a law has a discriminatory impact”); Frank, 768 F.3d at 752;
Gonzalez, 677 F.3d at 405–07. Indeed, we are unaware of a vote denial case
holding that a challenged practice placed a disproportionate burden on a protected
minority leading to “less opportunity than other members of the electorate to
participate in the political process and to elect representatives of their choice”
under § 2 without such quantitative or statistical data. 52 U.S.C. § 10301(b).14
13
The dissent appears to conflate the district court’s rule that quantitative
data is necessary to establish the first prong of a § 2 violation with a rule that only
actual post-election voting data can establish a § 2 violation. Dissent at 16. While
the Third Circuit has suggested that plaintiffs must prove that a challenged practice
has an impact on minority voter turnout, see Ortiz v. City of Phila. Office of City
Comm’rs Voter Registration Div., 28 F.3d 306, 314 (3d Cir. 1994), the district
court did not do so, and other circuits have evaluated pre-election challenges by
considering statistical evidence regarding voting registration, voter turnout in prior
elections, Ohio Democratic Party, 2016 WL 4437605, at *14, and the possession
of qualifying voter ID, Veasey v. Abbott, 830 F.3d at 250.
14
Feldman relies on two out-of-circuit vote dilution cases to support her
argument that statistical evidence is not required in the application of the factors
laid out in Gingles. See, e.g., Sanchez v. Colorado, 97 F.3d 1303, 1320–21 (10th
(continued...)
27
Notably, Feldman did present statistical evidence in our companion case, discussed
supra n.5.
We need not resolve this legal issue, however, because despite its ruling
regarding the lack of statistical or quantitative evidence, the district court
proceeded to review all the evidence in the record and rested its conclusion that
Feldman had failed to satisfy the first prong of § 2 on the alternate ground that
Feldman did not show that the burden of H.B. 2023 impacted minorities more than
non-minorities. Deferring to “the district court’s superior fact-finding
capabilities,” Salt River, 109 F.3d at 591, we conclude that this holding is not
clearly erroneous.
To satisfy the first prong, Feldman adduced several different categories of
evidence, including individual declarations, legislative history, and files from the
Department of Justice.
14
(...continued)
Cir. 1996); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1126
(3d Cir. 1993). But these cases indicate only that when minority voters claim that
racial bloc voting will defeat their opportunity to elect a candidate of their choice,
they may rely on a range of evidence to prove that a particular candidate is the
preferred minority candidate. See Sanchez, 97 F.3d at 1320–21; Jenkins, 4 F.3d at
1126. Neither case addresses the evidence required to show that a practice results
in protected minorities having less opportunity to participate in the political
process than non-minorities. See League of Women Voters of N.C., 769 F.3d at
240; Veasey v. Abbott, 830 F.3d at 244. As noted supra n.10, different evidence
may be required to prove a vote denial claim than to prove a vote dilution claim.
28
First, the record includes the declarations of Arizona Democratic lawmakers
and representatives of organizations that have collected and returned ballots in
prior elections. These declarations generally state that members of the
communities they have assisted rely on ballot collection services by third parties.
The district court discounted this testimony because the declarants did not provide
any comparison between the minority communities and non-minority communities.
The record supports this finding. The majority of the declarants focused their
efforts and obtained their experiences in minority communities.15 None of these
declarants compared the impact of H.B. 2023 on minorities as compared to non-
minorities. While two of the declarations made conclusory statements that H.B.
2023 “disproportionately impacts” protected minorities, it is not clear error for the
15
For instance, Declarant Randy Parraz stated that his organization, Citizens
for a Better Arizona, “focuse[s] its get-out-the-vote efforts on helping low-income
Latino voters.” Ian Danley’s declaration states that his non-partisan organization,
One Arizona, typically engages with voters in neighborhoods that are heavily
Latino. Declarants Joseph Larios and Ken Chapman work for the Center for
Neighborhood Leadership, which focuses its efforts in “low-income African
American and Latino neighborhoods.” The Arizona Democratic lawmakers who
provided declarations represent constituents who are predominately ethnic
minorities. For example, Representative Ruben Gallego “represent[s]
approximately 763,000 constituents, nearly 80% of whom are ethnic minorities.”
State Senator Martin Quezada “represent[s] approximately 213,000 constituents,
nearly 80% of which are ethnic minorities.” Kate Gallego, the Vice Mayor of the
City of Phoenix, represents a district that “is heavily Latino and has the highest
percentage—15%—of African Americans in any district in Phoenix.”
29
district court to discount such statements, where the declarant did not provide the
basis for the conclusion. Cf. Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., Inc.,
736 F.3d 1239, 1250 (9th Cir. 2013) (indicating that a district court should not rely
on “unsupported and conclusory statements” when finding facts as part of a
preliminary injunction analysis).
Other declarations submitted to the district court stated generally that ballot
collection by third parties benefits elderly voters, homebound voters, forgetful
voters, undecided voters, and voters from rural areas, but the court found no
evidence that these categories of voters were more likely to be minorities than non-
minorities. Again, this finding is not clearly erroneous. For instance, the district
court stated that while Feldman had provided evidence that the rural communities
of Somerton and San Luis were 95.9% and 98.7% Hispanic or Latino and lacked
home mail delivery, she did not provide evidence about home mail delivery to non-
minorities who reside in the rural communities of Colorado City, Fredonia,
Quartzite, St. David, Star Valley, and Wickenburg that are 99.5%, 89.1%, 92.5%,
92.1%, 91.4%, and 90.5% white, respectively. Similarly, while the record shows
that the Tohono O’odham Nation lacks home mail delivery service, Feldman does
not point to evidence showing that H.B. 2023 has a disproportionate impact on
members of the Tohono O’odham Nation compared to non-minorities who also
30
live in rural communities.16 The district court also rejected Feldman’s argument
that declarations provided by Sergio Arellano, President of the Tucson Chapter of
the Arizona Latino Republican Association, and Kevin Dang, President of the
Vietnamese Community of Arizona, admitted that “minority voters
disproportionately rely on ballot collection.” The district court concluded that
these declarations indicated only that minorities are disproportionately vulnerable
to being taken advantage of by ballot collectors because they often do not
understand English. This conclusion was not clear error.
In addition to the multiple declarations described above, Feldman submitted
legislative testimony from the debates on H.B. 2023, showing that a number of
lawmakers expressed concerns that H.B. 2023 would impact minority
communities, rural communities, working families, and the elderly. This evidence
likewise failed to compare minority communities to non-minority communities.
Finally, the district court considered the Department of Justice’s files
16
The dissent emphasizes that the evidence regarding the lack of mail
delivery service to the Tohono O’odham Nation and the rural communities of
Somerton and San Luis was not contested. Dissent at 21. But the issue is not
whether minority voters have limited access to mail delivery service; rather, the
issue is whether due to H.B. 2023, minorities “have less opportunity than other
members of the electorate to participate in the political process and to elect
representatives of their choice.” 52 U.S.C. § 10301(b) (emphasis added). Without
evidence regarding non-minorities, the comparison required by § 2 cannot be
made.
31
regarding its evaluation of S.B. 1412 (a prior Arizona bill proposing ballot
collection restrictions) for purposes of determining whether the bill was entitled to
preclearance under § 5 of the Voting Rights Act.17 The file contained summaries
of telephone conversations between a Department of Justice attorney and various
individuals about ballot collection practices in Arizona. None of these summaries
provide a comparison of the effect of S.B. 1412 on minorities and non-minorities.
Feldman claims that a summary of a phone call with then–Arizona Elections
Director Amy Bjelland shows that Arizona legislators targeted S.B. 1412 at
Hispanic communities. The district court, however, reasonably interpreted this
phone summary as stating that the impetus for S.B. 1412 was an accusation of
voter fraud in San Luis, a predominately Hispanic area in the southern portion of
Arizona, that S.B. 1412 was aimed at this sort of fraud, and that in Bjelland’s view,
voter fraud was more prevalent at the border because individuals living closer to
17
At the time of S.B. 1412’s enactment, Arizona was still subject to Section 5
of the Voting Rights Act, which required Arizona to receive preclearance from the
Department of Justice or a federal court convened in the United States District
Court for the District of Columbia before implementing a new voting standard,
practice, or procedure. 52 U.S.C. § 10304. The Arizona Attorney General
submitted S.B. 1412 to the Department of Justice for preclearance. The
Department of Justice requested additional information about S.B. 1412’s ballot
collection restrictions, but did not complete its evaluation of S.B. 1412 because the
Arizona legislature repealed the ballot-collection measure as a part of an omnibus
bill in 2012.
32
the border are more impacted by corruption and voting fraud claimed to exist in
Mexico.
On appeal, Feldman argues that the district court erred because it did not
accept her multi-step argument that she met the first prong of § 2 based on
evidence that certain socioeconomic circumstances disparately impact minorities,
and this disparate impact would combine with a lack of certain third-party ballot
collectors to lessen minorities’ opportunities in the political process. We reject this
argument. Feldman’s evidence of differences in the socioeconomic situation of
minorities and non-minorities does not satisfy the first prong of the § 2 test because
it does not show that H.B. 2023 causes a protected minority group to have less
opportunity than other members of the electorate to participate in the political
process. See Gingles, 478 U.S. at 44 n.8. Proof of a causal connection between the
challenged voting practice and a prohibited result is “crucial,” Gonzalez, 677 F.3d
at 405 (citing Salt River, 109 F.3d at 595), and Feldman points to no evidence that
the restriction on third-party ballot collection causes minorities to have less
opportunity to vote than non-minorities. Indeed, although H.B. 2023 was in effect
for all but the first three days of early voting for the Primary Election, the record
does not include any testimony by minority voters that their ability to participate in
the political process was affected by the inability to use a third-party ballot
collector. The district court did not clearly err in declining to make the inference
urged by Feldman (i.e., that due to minorities’ socioeconomic status, they were
likely to have fewer opportunities than non-minorities to participate in the political
process if they could not use certain third-party ballot collectors) in the absence of
evidence supporting that inference.
We rejected a similar argument in Gonzalez. As in this case, the plaintiff in
Gonzalez argued that a law requiring prospective voters to obtain a photo
identification before they cast ballots at the polls violated § 2 because it had a
statistically significant disparate impact on Latino voters. 677 F.3d at 406. To
support this argument, the plaintiff presented evidence “of Arizona’s general
history of discrimination against Latinos and the existence of racially polarized
voting.” Id. at 407. Despite this general history of discrimination, we affirmed the
district court’s rejection of this claim, because the plaintiff was unable to produce
evidence that the photo identification law caused minorities to have less
opportunity to participate in the political process. Id.; see also Frank, 768 F.3d at
752–55 (holding that a photo identification law which had a disparate impact on
minorities did not violate § 2 because plaintiffs failed to show that the law had
caused a discriminatory result). For the same reason, Feldman’s evidence
regarding the socioeconomic situation of minorities is insufficient in the absence of
evidence that H.B. 2023 caused minorities to have less opportunity to participate in
34
the political process.
In short, the district court did not clearly err in concluding that Feldman
adduced no evidence showing that H.B. 2023 would have an impact on minorities
different than the impact on non-minorities, let alone that the impact would result
in less opportunity for minorities to participate in the political process as compared
to non-minorities.18 Because the court found that Feldman’s § 2 claim failed at the
first prong, as in Gonzalez, the district court had no obligation to reach the second
prong, and therefore did not err in declining to consider whether H.B. 2023
interacted with racial discrimination to cause a discriminatory result. See 677 F.3d
at 407.19 The district court’s conclusion that H.B. 2023 did not violate § 2 was not
“(1) illogical, (2) implausible, or (3) without support in inferences that may be
18
The dissent argues that once plaintiffs have established a burden on
minority voters, a “burden of rejoinder” should be placed on the state. Dissent at
22. But § 2 requires more than merely showing a burden on minorities. It requires
plaintiffs to establish that minorities “have less opportunity than other members of
the electorate to participate in the political process.” 52 U.S.C. § 10301. We have
held that it is not enough for the plaintiff to make “a bare statistical showing of
disproportionate impact on a racial minority”; rather, “Section 2 plaintiffs must
show a causal connection between the challenged voting practice and [a]
prohibited discriminatory result.” Salt River, 109 F.3d at 595 (second emphasis
added) (quoting Ortiz, 28 F.3d at 312); see also Fairley v. Hattiesburg, 584 F.3d
660, 669 (5th Cir. 2009) (“[T]he plaintiffs bear the burden of proof in a VRA case,
and any lack of record evidence on VRA violations is attributed to them.”).
19
We likewise do not consider the nine factors set forth in Gingles, 478 U.S.
at 36–37.
35
drawn from the facts in the record,” Hinkson, 585 F.3d at 1262 (internal quotation
marks omitted). Therefore, we hold that the district court did not abuse its
discretion in finding Feldman was unlikely to succeed on her Voting Rights Act
claim.
B
Feldman also contends that the district court erred in concluding that her
facial challenge to H.B. 2023 on constitutional grounds was unlikely to succeed on
the merits. We first lay out the analytical framework for facial challenges to voting
laws under the Fourteenth and First Amendments, and then consider Feldman’s
challenges.20
1
The Constitution grants the States a “broad power to prescribe the ‘Times,
Places and Manner of holding Elections for Senators and Representatives.’” Wash.
State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008) (quoting
U.S. Const., art. 1, § 4, cl. 1). This power under the Elections Clause to regulate
20
The dissent contends that “neither the plaintiffs nor the defendants
categorize the challenge to H.B. 2023 as a facial challenge.” Dissent at 11 n.3.
However, “[t]he label is not what matters.” John Doe No. 1 v. Reed, 561 U.S. 186,
194 (2010). Because Feldman’s “claim and the relief that would follow—an
injunction” barring Arizona from implementing and enforcing H.B. 2023—“reach
beyond the particular circumstances of these plaintiffs,” id., it is properly
characterized as a facial challenge.
36
elections for federal offices “is matched by state control over the election process
for state offices.” Id. (quoting Clingman v. Beaver, 544 U.S. 581, 586 (2005)).
“Governments necessarily ‘must play an active role in structuring elections,’” Pub.
Integrity All., Inc. v. City of Tucson, — F.3d —, No. 15-16142, 2016 WL 4578366,
at *3 (9th Cir. Sept. 2, 2016) (en banc) (quoting Burdick v. Takushi, 504 U.S. 428,
433 (1992)), and “as a practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of order, rather than
chaos, is to accompany the democratic processes,” Storer v. Brown, 415 U.S. 724,
730 (1974).
However, when a state exercises its power and discharges its obligation “[t]o
achieve these necessary objectives,” the resulting laws “inevitably affect[]—at
least to some degree—the individual’s right to vote and his right to associate with
others for political ends.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).
Therefore, the state’s “power is not absolute, but is ‘subject to the limitation that
[it] may not be exercised in a way that violates . . . specific provisions of the
Constitution.’” Wash. State Grange, 552 U.S. at 451 (alterations in original)
(quoting Williams, 393 U.S. at 29). While the Constitution does not expressly
guarantee the right to vote in state and federal elections, the Fourteenth
Amendment protects a citizen’s right “to participate in elections on an equal basis
37
with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336
(1972). That is, “once the franchise is granted to the electorate, lines may not be
drawn which are inconsistent with the Equal Protection Clause of the Fourteenth
Amendment.” Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665 (1966).
Similarly, “[w]hile the freedom of association is not explicitly set out in the [First]
Amendment,” Healy v. James, 408 U.S. 169, 181 (1972), “the Court has
recognized a right to associate for the purpose of engaging in those activities
protected by the First Amendment . . . as an indispensable means of preserving
other individual liberties,” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).
This right includes the ability “to associate . . . for the advancement of common
political goals and ideas,” Timmons v. Twin Cities Area New Party, 520 U.S. 351,
357 (1997), and “the ability of citizens to band together in promoting among the
electorate candidates who espouse their political views,” Cal. Democratic Party v.
Jones, 530 U.S. 567, 574 (2000). The Supreme Court has long recognized that
“some forms of ‘symbolic speech’ [are] deserving of First Amendment protection.”
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 65 (2006).
However, First Amendment protection extends “only to conduct that is inherently
expressive.” Id. at 66. Conduct is inherently expressive if it “is intended to be
communicative and . . . in context, would reasonably be understood by the viewer
38
to be communicative.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288,
294 (1984). For instance, burning the American flag, Texas v. Johnson, 491 U.S.
397, 406 (1989), and wearing an unauthorized military medal, United States v.
Swisher, 811 F.3d 299, 314 (9th Cir. 2016) (en banc), are expressive conduct
within the scope of the First Amendment.
The Supreme Court has explained that constitutional challenges to election
laws “cannot be resolved by any ‘litmus-paper test’ that will separate valid from
invalid restrictions.” Anderson, 460 U.S. at 789. Rather, “a more flexible standard
applies.” Burdick, 504 U.S. at 434. “A court considering a challenge to a state
election law must weigh [1] ‘the character and magnitude of the asserted injury to
the rights protected by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate’ against [2] ‘the precise interests put forward by the State as
justifications for the burden imposed by its rule,’ taking into consideration [3] ‘the
extent to which those interests make it necessary to burden the plaintiff’s rights.’”
Id. (quoting Anderson, 460 U.S. at 789). This framework is generally referred to
as the Anderson/Burdick balancing test. In applying this test, we: (1) identify and
determine the magnitude of the burden imposed on voters by the election law; (2)
identify the State’s justifications for the law; and (3) weigh the burden against the
State’s justifications. The severity of the burden that an election law imposes “is a
39
factual question on which the plaintiff bears the burden of proof.” Democratic
Party of Haw. v. Nago, 833 F.3d 1119, 1122–24 (9th Cir. 2016) (citing Cal.
Democratic Party, 530 U.S. 567); Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th
Cir. 2007) (noting that whether an election law imposes a severe burden is an
“intensely factual inquiry”).
“[T]he severity of the burden the election law imposes on the plaintiff’s
rights dictates the level of scrutiny applied by the court.” Ariz. Libertarian Party v.
Reagan, 798 F.3d 723, 729 (9th Cir. 2015) (quoting Nader v. Cronin, 620 F.3d
1214, 1217 (9th Cir. 2010) (per curiam)). “This is a sliding scale test”: when the
burden imposed is severe, not only the “more compelling the state’s interest must
be,” Ariz. Green Party v. Reagan, — F.3d —, No. 14-15976, 2016 WL 5335037, at
*4 (9th Cir. Sept. 23, 2016), but the regulation also “must be ‘narrowly drawn to
advance a state interest of compelling importance,’” Burdick, 504 U.S. at 434
(quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).
By contrast, “when a state election law provision imposes only ‘reasonable,
nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of
voters, ‘the State’s important regulatory interests are generally sufficient to justify’
the restrictions.” Id. (quoting Anderson, 460 U.S. at 788) ; see also Ariz. Green
Party, 2016 WL 5335037, at *4 (“[A] state may justify election regulations
40
imposing a lesser burden by demonstrating the state has important regulatory
interests.” (quoting Ariz. Libertarian Party, 798 F.3d at 729–30)). While Burdick
does not call for rational basis review, Pub. Integrity All., 2016 WL 4578366, at
*4, it likewise specifically declined to require that all voting regulations be
narrowly tailored and subjected to strict scrutiny, see Burdick, 504 U.S. at 433.
Rather, Burdick held that when a statute imposes only a limited burden, the
“‘precise interests’ advanced by the State” alone may be “sufficient to defeat [a
plaintiff’s] facial challenge,” Crawford v. Marion Cty. Election Bd., 553 U.S. 181,
203 (2008) (controlling opinion of Stevens, J.) (quoting Burdick, 504 U.S. at 434).
See also Pub. Integrity All., 2016 WL 4578366, at *6 (upholding a municipal
election law, even though it was aimed at furthering the same interests as other
municipal ordinances, because it might have marginal impact beyond that provided
by other laws).
Finally, the Supreme Court has warned that facial challenges “are best when
infrequent,” Sabri v. United States, 541 U.S. 600, 608 (2004), and “are disfavored
for several reasons” in the election law context in particular, Wash. State Grange,
552 U.S. at 450. For instance, Arizona “has had no opportunity to implement
[H.B. 2023], and its courts have had no occasion to construe the law in the context
of actual disputes arising from the electoral context, or to accord the law a limiting
41
construction to avoid constitutional questions.” Id. “Claims of facial invalidity
often rest on speculation,” and “raise the risk of ‘premature interpretation of
statutes on the basis of factually barebones records.’” Id. (quoting Sabri, 541 U.S.
at 609). When faced with underdeveloped “evidence regarding the practical
consequences of [H.B. 2023], we find ourselves in the position of Lady Justice:
blindfolded and stuck holding empty scales.” Ariz. Green Party, 2016 WL
5335037, at *6 (quoting Ariz. Libertarian Party, 798 F.3d at 736 (McKeown, J.,
concurring)). Accordingly, plaintiffs asserting a facial challenge “bear a heavy
burden of persuasion,” the magnitude of which the Supreme Court has reminded us
“to give appropriate weight.” Crawford, 553 U.S. at 200.
2
We now turn to Feldman’s Fourteenth Amendment claim. Feldman claims
that the district court made a number of errors in determining that she was unlikely
to prevail on the merits of her claim that H.B. 2023 imposes an undue burden on
Arizona voters that is not outweighed by the State’s asserted interests.
Feldman first argues that the district court erred in its application of the
Anderson/Burdick framework. Under this framework, a district court must first
consider the burden posed by H.B. 2023. Burdick, 504 U.S. at 434. In considering
this burden, we must take care to avoid the “sheer speculation” that often
42
accompanies the assessment of burdens when considering facial challenges. Wash.
State Grange, 552 U.S. at 454; see also Chicanos Por La Causa, Inc. v.
Napolitano, 558 F.3d 856, 866 (9th Cir. 2008) (“In any event, a speculative,
hypothetical possibility does not provide an adequate basis to sustain a facial
challenge.”).
Here, the district court did not clearly err in finding that H.B. 2023 did not
“significantly increase the usual burdens of voting.” As an initial matter, H.B.
2023 on its face imposes less of a burden than the challenged law did in Crawford.
Crawford considered the impact of Indiana’s voter-ID law, which required voters
who lacked photo ID to sustain “the inconvenience of making a trip to the [state
Bureau of Motor Vehicles], gathering the required documents, and posing for a
photograph” to obtain the requisite identification. 553 U.S. at 198. In the
alternative, a voter who could not or did not want to obtain a photo ID could
submit a provisional ballot and “travel to the circuit court clerk’s office within 10
days to execute the required affidavit” accompanying the provisional ballot. Id. at
199. The Court found that the law imposed “only a limited burden on voters’
rights.” Id. at 203 (quoting Burdick, 504 U.S. at 439); see id. at 209 (Scalia, J.,
concurring in the judgment).
Crawford’s finding of a limited burden compels a similar conclusion here.
43
While the Indiana photo ID law imposed an affirmative requirement that voters
possess photo ID in order to vote, H.B. 2023 limited only one of several methods
of voting that Arizona law otherwise makes available: only third-party ballot
collectors who do not qualify under the statute are precluded from delivering
ballots. The district court’s conclusion that the limitation of one alternative for
ballot collection does not “represent a significant increase over the usual burdens
of voting” is not clearly erroneous. Crawford, 553 U.S. at 198; see Ohio
Democratic Party, 2016 WL 4437605, at *6 (rejecting a challenge to Ohio’s
“withdrawal of the convenience of same-day registration” and holding that the
Constitution does not “require all states to maximize voting convenience”).21
Further, any burden imposed by H.B. 2023 is mitigated by the availability of
alternative means of voting. The lead opinion in Crawford held that the burden
imposed by Indiana’s voter-ID law was “mitigated by the fact that, if eligible,
voters without photo identification may cast provisional ballots,” even though
doing so required a voter to make two trips: the first to vote and the second to
21
The dissent argues that because “80% of the electorate uses early absentee
voting,” it “has transcended convenience and has become instead a practical
necessity.” Dissent at 9. In doing so, the dissent elides the distinction between
early absentee voting in general and early absentee voting through third-party
ballot collection, the only practice restricted by H.B. 2023. Feldman did not
provide “concrete evidence,” Crawford, 553 U.S. at 201, of the number of voters
who rely on this practice.
44
execute the required affidavit. 553 U.S. at 199. Here, H.B. 2023 could at most
require that a voter make that first trip—to vote in the first instance. Because
making two trips does not represent a burden “over the usual burdens of voting” in
Crawford, id. at 198, the district court could reasonably determine that the single
trip required here does not represent such a burden, either. Although Feldman
contends that “thousands” of Arizona voters rely on third-party ballot collection in
order to cast their early ballots,” the record does not support her additional claim
that without ballot collection by third parties disqualified by H.B. 2023, many
Arizona voters “would not have been able to vote in prior elections.”
Feldman also argues that the district court erred in failing to consider the
burdens imposed on specific groups of voters for whom H.B. 2023 poses a more
serious challenge. We disagree, because the evidence in the record was
insufficient for such an analysis. While a court may consider a law’s impact on
subgroups, there must be sufficient evidence to enable a court “to quantify the
burden imposed on the subgroup.” Pub. Integrity All., 2016 WL 4578366, at *3
n.2 (citing Crawford, 553 U.S. at 199–203; id. at 212–17 (Souter, J., dissenting));
see also Ne. Ohio Coal. for the Homeless v. Husted, — F.3d —, Nos. 16-3603, 16-
3691, 2016 WL 4761326, at *11–12 (6th Cir. Sept. 13, 2016) (holding that
Crawford may permit “weighing the ‘special burden’ faced by ‘a small number of
45
voters’” when there is “quantifiable evidence from which an arbiter could gauge
the frequency with which this narrow class of voters has been or will become
disenfranchised,” but that in the absence of such evidence, a court should “consider
the burden that the provisions place on all . . . voters.” (quoting Crawford, 553
U.S. at 200)), reh’g en banc denied, — F.3d —, 2016 WL 5939925 (6th Cir. Oct.
6, 2016). In Crawford, the Court acknowledged that the photo ID requirement
placed “a somewhat heavier burden . . . on a limited number of persons,” but did
not consider this burden because it was “not possible to quantify either the
magnitude of the burden on this narrow class of voters or the portion of the burden
imposed on them that is fully justified.” 553 U.S. at 199–200. Accordingly, the
Court instead considered “the statute’s broad application to all . . . voters.” Id. at
202–03 (quoting Burdick, 504 U.S. at 439). Here, the record includes broad
assertions regarding the number of ballots previously collected, but does not
include sufficient “concrete evidence” of “the number of registered voters” within
specific groups or evidence that permits weighing of the burden on these voters,
such as whether H.B. 2023 would merely inconvenience these voters or preclude
them from voting. Id. at 200–01. Given the paucity of evidence regarding these
key issues, the district court did not err in declining to focus on the burden on
specific groups. See id. at 201–02. We conclude that the district court did not
46
clearly err in identifying and assessing the burden imposed by H.B. 2023.
Because the district court did not clearly err in its determination of the
burden imposed by H.B. 2023 on the right to vote, we proceed to the second step
of the Anderson/Burdick framework and consider Arizona’s interests. Feldman
does not dispute that Arizona’s interest in preventing absentee-voting fraud and
maintaining public confidence in elections are “relevant and legitimate state
interests,” Crawford, 553 U.S. at 191, nor could she. “A State indisputably has a
compelling interest in preserving the integrity of its election process.” Purcell, 549
U.S. at 4 (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231
(1989)). “While the most effective method of preventing election fraud may well
be debatable, the propriety of doing so is perfectly clear.” Crawford, 553 U.S. at
196. Similarly, “public confidence in the integrity of the electoral process has
independent significance, because it encourages citizen participation in the
democratic process.” Id. at 197. And as the district court correctly recognized,
absentee voting may be particularly susceptible to fraud, or at least perceptions of
it. See Crawford, 553 U.S. at 225 (Souter, J., dissenting); Griffin v. Roupas, 385
F.3d 1128, 1131 (7th Cir. 2004); see also United States v. Townsley, 843 F.2d 1070
(8th Cir. 1988). The district court did not err in crediting Arizona’s important
interest in preventing fraud even in the absence of evidence that voter fraud had
47
been a significant problem in the past. In Crawford, the Court noted that “[t]he
record contains no evidence of any such fraud actually occurring,” but nonetheless
concluded that “not only is the risk of voter fraud real but . . . it could affect the
outcome of a close election.” 553 U.S. at 194–96; see also Ohio Democratic
Party, 2016 WL 4437605, at *9; Frank, 768 F.3d at 749–50. Courts recognize that
legislatures need not restrict themselves to a reactive role: legislatures are
“permitted to respond to potential deficiencies in the electoral process with
foresight rather than reactively.” Munro v. Socialist Workers Party, 479 U.S. 189,
195–96 (1986).
Feldman also contends that the district court made several legal errors in
assessing Arizona’s interests and in weighing them against the burden on voters.
First, Feldman argues that the district court erred in holding that “laws that do not
significantly increase the usual burdens of voting do not raise substantial
constitutional concerns.” We disagree. It is axiomatic that under a balancing test
such as Anderson/Burdick’s, less weight on one side of the scale allows that scale
to be more easily tipped in the other direction. “[W]hen a state election law
provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First
and Fourteenth Amendment rights of voters, ‘the State’s important regulatory
interests are generally sufficient to justify’ the restrictions.” Burdick, 504 U.S. at
48
434 (quoting Anderson, 460 U.S. at 788).
Second, Feldman argues that the district court failed to consider the means-
end fit between Arizona’s interests in preventing absentee-voting fraud and
eliminating the perception of fraud on the one hand and the burdens imposed on
voters on the other hand. Relying on a vacated Sixth Circuit opinion, see Ohio
State Conference of the NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014), vacated,
No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014), Feldman argues that
Arizona was required to “explain why the particular restriction imposed is actually
necessary,” id. at 545. Again, we disagree. The lead opinion in Crawford held that
a limited burden on voters’ rights imposed by the challenged law was outweighed
by two “unquestionably relevant” interests offered by the state, without
considering the fit between those interests and the voter-ID law. See 553 U.S. at
203. And as several of our sister circuits have recognized, it is “practically self-
evidently true” that implementing a measure designed to prevent voter fraud would
instill public confidence. Ohio Democratic Party, 2016 WL 4437605, at *9 (citing
Crawford, 553 U.S. at 197); see Frank, 768 F.3d at 750 (noting that Crawford took
“as almost self-evidently true” the relationship between a measure taken to prevent
voter fraud and promoting voter confidence). By asserting its interest in
preventing election fraud and promoting public confidence in elections, essentially
49
the same interests as in Crawford, Arizona bore its burden of establishing
“important regulatory interests” sufficient to justify the minimal burden imposed
by H.B. 2023. Accordingly, the district court could reasonably conclude that
Arizona’s means—restricting third-party ballot collection—matched the desired
ends of preventing voter fraud and promoting voter confidence in the electoral
system.22
For similar reasons, we reject Feldman’s argument that the district court
erred in not considering whether Arizona’s “goals could have been achieved
through less burdensome means.” Neither the Supreme Court nor we have
required a state to prove there is no less restrictive alternative when the burden
imposed is minimal. Burdick expressly declined to require that restrictions
imposing minimal burdens on voters’ rights be narrowly tailored. See 504 U.S. at
22
The dissent argues that “the state’s justification for the law was weak”
because it “could not identify a single example of voter fraud caused by ballot
collection.” Dissent at 9. But the record does contain evidence of improprieties,
such as ballot collectors impersonating elections officials. Moreover, Arizona’s
interest is not simply in preventing fraud, but also in promoting public confidence
in the electoral system, and the record contains evidence from which the district
court could properly conclude, as Feldman’s expert conceded, that absentee voting
is particularly conducive to fraud. “[O]ccasional examples” of fraud—as
documented in the Arizona Republic article cited by the dissent—“demonstrate
that . . . the risk of voter fraud [is] real,” Crawford, 553 U.S. at 195–96. Courts,
wisely, do not require “that a State’s political system sustain some level of
damage” before allowing “the legislature [to] take corrective action.” Munro, 479
U.S. at 195.
50
433. Consistent with Burdick, we upheld in Public Integrity Alliance an election
restriction (ward-based primary elections) that furthered the interest of “ensuring
local representation by and geographic diversity among elected officials” by
ensuring that “the candidates nominated in a given ward actually have the support
of a majority of their party’s voters in that ward,” even though other less-restrictive
means such as candidate-residency requirements could achieve the same broader
purpose. 2016 WL 4578366, at *5. Similarly, in Arizona Green Party, we rejected
the argument that the state must “adopt a system that is the most efficient possible”
such that later deadlines could be set, in light of the “de minimis burden” imposed
by the existing deadlines. 2016 WL 5335037, at *7. As the district court found,
H.B. 2023 establishes a chain-of-custody for absentee ballots that furthers
Arizona’s stated interests of reducing fraud and promoting public confidence, even
though other, less restrictive, laws may achieve the same broader purpose.
In sum, we conclude that the district court did not clearly err in finding that
H.B. 2023 imposed a minimal burden on voters’ Fourteenth Amendment right to
vote, in finding that Arizona asserted sufficiently weighty interests justifying the
limitation, and in ultimately concluding that Feldman failed to establish that she
was likely to succeed on the merits of her Fourteenth Amendment challenge.
3
51
We next consider Feldman’s First Amendment claim. According to
Feldman, the district court undervalued the expressive significance of ballot
collection when it concluded that she was unlikely to succeed on the merits of her
First Amendment freedom of association claim. Feldman contends that through
ballot collection, individuals and organizations convey their support for the
democratic process and for particular candidates and political parties. For
example, declarant Ian Danley stated that his coalition, One Arizona, helps its
“voters ensure that their voices are heard on Election Day” by “collecting and
personally delivering their signed, sealed early ballots.” Similarly, declarant
Rebekah Friend stated that under H.B. 2023, the Arizona State Federation of Labor
will have difficulty fulfilling its goal of encouraging its members to register and
vote because it “will no longer be able to help its members or other voters vote by
taking their signed, sealed early ballots to the Recorder’s office.” Therefore,
Feldman argues, “ballot collectors convey that voting is important not only with
their words but with their deeds.”
We first consider whether ballot collection is expressive conduct protected
under the First Amendment. See Clark, 468 U.S. at 293 n.5 (“[I]t is the obligation
of the person desiring to engage in assertedly expressive conduct to demonstrate
that the First Amendment even applies. To hold otherwise would be to create a rule
52
that all conduct is presumptively expressive.”). We agree with the district court
that it is not. Even if ballot collectors intend to communicate that voting is
important, “[w]e cannot accept the view that an apparently limitless variety of
conduct can be labeled ‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376
(1968). Unlike burning an American flag or wearing a military medal, ballot
collection does not convey a message that “would reasonably be understood by the
viewer to be communicative.” Swisher, 811 F.3d at 311 (quoting Clark, 468 U.S.
at 294). Rather, a viewer would reasonably understand ballot collection to be a
means of facilitating voting, not a means of communicating a message. See, e.g.,
Voting for Am., Inc. v. Steen, 732 F.3d 382, 392 (5th Cir. 2013) (concluding that
collecting and delivering voter registration applications is “merely conduct”
because “there is nothing inherently expressive” about it).
While political organizations undoubtedly engage in protected activities,
ballot collection does not acquire First Amendment protection merely because it is
carried out along with protected activities and speech. See Forum for Acad. &
Institutional Rights, Inc., 547 U.S. at 66 (concluding that “combining speech and
conduct” is not enough to create expressive conduct); Voting for Am., 732 F.3d at
389 (“The Court also has repeatedly explained that non-expressive conduct does
53
not acquire First Amendment protection whenever it is combined with another
activity that involves protected speech.”). Because H.B. 2023 regulates only third-
party ballot collection, which is non-expressive conduct, the district court did not
err in concluding that H.B. 2023 does not implicate the First Amendment.
Moreover, even if we assumed that H.B. 2023 implicates the First
Amendment, we agree with the district court’s conclusion that Arizona’s
regulatory interests in preventing voter fraud justifies the minimal burden that
H.B. 2023 imposes on associational rights under the Anderson/Burdick test.
Looking first at the burden imposed by H.B. 2023, the district court did not clearly
err in finding that H.B. 2023 does not impose a severe burden. H.B. 2023 does not
prevent individuals and organizations from encouraging others to vote, educating
voters, helping voters register, helping voters complete their early ballots,
providing transportation to voting sites or mailboxes, or promoting political
candidates and parties. Ariz. Rev. Stat. § 16-1005; see, e.g., Timmons, 520 U.S. at
361 (concluding that the burden a Minnesota law imposed on a political party’s
First and Fourteenth Amendment rights was not severe because the party remained
“free to endorse whom it likes, to ally itself with others, to nominate candidates for
office, and to spread its message to all who will listen”). H.B. 2023 does not
prevent individuals and organizations from associating “for the advancement of
54
common political goals and ideas,” Timmons, 520 U.S. at 357, or from “[banding]
together in promoting among the electorate candidates who espouse their political
views,” Cal. Democratic Party, 530 U.S. at 574.
Turning to Arizona’s regulatory interests, we conclude for the reasons
discussed supra at 47–48 that the district court did not clearly err in finding that
Arizona has important regulatory interests in preventing voter fraud and
maintaining the integrity of the electoral process. Accordingly, the district court
could properly conclude that Arizona’s important regulatory interests are sufficient
to justify any minimal burden on associational rights, as discussed supra at 49–51.
In sum, we conclude that ballot collection is not expressive conduct
implicating the First Amendment, but even if it were, Arizona has an important
regulatory interest justifying the minimal burden that H.B. 2023 imposes on
freedom of association. The district court did not err in concluding that the
Feldman was unlikely to succeed on the merits of her First Amendment claim.
IV
Having concluded that the district court did not err in holding that Feldman
failed to demonstrate a likelihood of success on the merits, we briefly consider the
remaining equitable factors for issuing a preliminary injunction. Because it is not
likely that Feldman will suffer a violation of her statutory or constitutional rights,
55
she likely has “failed to establish that irreparable harm will flow from a failure to
preliminarily enjoin defendants’ actions.” Hale v. Dep’t of Energy, 806 F.2d 910,
918 (9th Cir. 1986).
Even if Feldman had raised serious questions as to the merits of her claims,
and also shown a likelihood of irreparable harm, Winter, 555 U.S. at 22, relief
would not be warranted because Feldman has not shown that “the balance of
hardships tips sharply” in her favor or that an injunction is in the public interest.
All. for the Wild Rockies, 632 F.3d at 1135. This case is not one in which
“qualified voters might be turned away from the polls.” Purcell, 549 U.S. at 4.
Rather, it is one in which voters are precluded from giving their ballots to third-
party ballot collectors and organizations must use an alternative means of
mobilizing their voters. Cf. Lair, 697 F.3d at 1215 (the existence of “other options
for engaging in political speech” militated in favor of staying an injunction against
enforcement of a state law restricting one avenue of speech). Indeed, the district
court found from the evidence that many voters who entrust their ballots to
collectors do so merely for convenience, and we cannot disturb this finding. See
Hinkson, 585 F.3d at 1262 (noting our deference to findings that are plausible and
supported by the record). The record does not establish that the organizational
plaintiffs’ need, in light of H.B. 2023, to reallocate resources as part of a
56
reconfigured get-out-the-vote effort constitutes a substantial hardship.
The impact of H.B. 2023 on prospective voters, which the district court
found largely to be inconvenience, does not outweigh the hardship on Arizona,
which has a compelling interest in the enforcement of its duly enacted laws. See
Nken v. Holder, 556 U.S. 418, 436 (2009) (recognizing the public interest in the
enforcement of the law); Veasey v. Perry, 769 F.3d at 895 (“When a statute is
enjoined, the State necessarily suffers the irreparable harm of denying the public
interest in the enforcement of its laws.”). As a general matter, Arizona’s regulation
of the early voting process advances its interest in preserving ballot secrecy and
preventing “undue influence, fraud, ballot tampering, and voter intimidation.”
Miller, 179 Ariz. at 180. The interest in preventing fraud is “compelling,” Purcell,
549 U.S. at 4, and for Arizona no less than for Feldman, there are no “do over”
elections; “the State cannot run the election over again” with the tools H.B. 2023
provides to combat possible fraud. Veasey v. Perry, 769 F.3d at 896. On this
record, then, the balance cannot be said to tip “sharply” in Feldman’s favor. All.
for the Wild Rockies, 632 F.3d at 1135.
We turn finally to the public interest, an inquiry that “primarily addresses
impact on non-parties,” Bernhardt v. Los Angeles County, 339 F.3d 920, 931 (9th
Cir. 2003), but that closely tracks Arizona’s own interests, see Nken, 556 U.S. at
57
435. Like Arizona itself, its citizens “have a deep interest in fair elections.” Lair,
697 F.3d at 1215. Even in the absence of actual fraud, the prospect of early voting
fraud may undermine public confidence in the results of the election. Purcell, 549
U.S. at 4. At the very least, H.B. 2023 assists in exorcizing the specter of
illegitimacy that may hang over the electoral process in the minds of some citizens.
“Given the deep public interest in honest and fair elections” as well as the
“numerous available options” for voters to submit ballots in Arizona consistent
with H.B. 2023, Lair, 697 F.3d at 1215, removing H.B. 2023 from the State’s
regulatory toolbox in the middle of the voting period may well do more harm to the
perceived integrity and legitimacy of the election than good.
Feldman is therefore not only unlikely to prevail on the merits, but, as the
district court concluded, her interest in avoiding possible irreparable harm does not
outweigh Arizona’s and the public’s mutual interests in the enforcement of H.B.
2023 pending final resolution of this case. In reaching this conclusion, we heed the
Supreme Court’s admonition to consider the harms “specific to election cases,”
Purcell, 549 U.S. at 4, attendant on enjoining the enforcement of a state’s voting
law while it is currently in play, and just weeks before an election.
AFFIRMED.
58
Feldman v. Sec. of State of Arizona, No. 16-16698
FILED
OCT 28 2016
THOMAS, Chief Judge, dissenting:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Arizona has criminalized one of the most popular and effective methods by
which minority voters cast their ballots. Because this law violates the Constitution
and the Voting Rights Act, I must respectfully dissent.
I
Like most states, Arizona allows voters to cast a ballot on election day at a
polling place, or to cast an early absentee vote, either in person or by mail. A.R.S.
§ 16-541. Early voting has become increasingly popular in Arizona, as evidenced
by the fact that 81% of ballots cast in the last Presidential election were cast by
early voting, a 12% increase from the 2012 election. An important reason for the
increase in early voting is that Arizona has substantially reduced the number of
polling places, resulting in extraordinarily long lines, with voters waiting many
hours to cast their ballots. In one urban area, there is one voting center for nearly
70,000 registered voters. In some precincts in Maricopa County, voters waited for
four hours to cast their ballots in the Presidential Preference Primary election
earlier this year. In other precincts, the wait was up to six hours. Compounding
the problem is that, in Maricopa County in particular, polling places change with
each election, and the County is using a different polling place system for the
general election than it did in the Presidential Preference election earlier this year.
As the use of early voting has skyrocketed in Arizona, voters have
increasingly used friends, organizations, political parties, and campaign workers to
transmit their ballots. Some efforts are typical of “get-out-the-vote” campaigns by
partisan groups; others are targeted to provide a service to those who cannot get to
the polls. Because of geographic and other impediments to voting, voting by ballot
collection has become a critical means for minority voters to cast their ballots. A
substantial number of rural minority voters live in areas without easy access to
mail service. In urban areas, many minority voters are socioeconomically
disadvantaged, meaning that they may lack reliable mail service and have to rely
on public transportation to get to polling places.
Nonetheless, Arizona enacted the law at issue, House Bill 2023, codified at
A.R.S. § 16-1005 (H)-(I), which imposes felony criminal sanctions for non-
household members or caregivers who collect early ballots from others. Plaintiffs
filed this lawsuit challenging the law under the Voting Rights Act of 1965 and the
First and Fourteenth Amendments to the United States Constitution. The district
court denied the plaintiffs’ motion for a preliminary injunction, and this
interlocutory appeal followed.
We review the denial of a preliminary injunction for abuse of discretion.
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). A
2
district court abuses its discretion if its analysis is premised on an inaccurate view
of the law. Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th Cir. 2014).
In such instances, we review de novo the legal premises underlying the preliminary
injunction. Id.1
II
The district court erred in its analysis of the plaintiffs’ Fourteenth
Amendment claims. First, it erroneously employed a rational basis review
standard, when the appropriate standard was a “balancing and means-end fit
analysis.” Pub. Integrity All. v. City of Tucson, 2016 WL 4578366, at *3 (9th Cir.
1
The majority believes the district court’s findings of fact are reviewed by
this Court for clear error because the district court has superior fact-finding
capabilities. Maj. Op. at 23. The majority also believes a district court’s answer to
the ultimate question–whether there was a § 2 violation–is a finding of fact entitled
to deference. The majority cites Gonzales for that proposition. However, the
district court did not conduct any evidentiary hearings to resolve disputed factual
issues, and most of the record is undisputed, and the parties’ submissions were by
affidavit. Furthermore, the district court here did not determine whether there was
a § 2 violation because, unlike in Gonzales, we are not yet at the merits stage of the
inquiry. This is an appeal of a denial of a preliminary injunction, so we are
reviewing the district court’s determination that the plaintiffs are unlikely to
succeed on the merits of their claims. In my view, the plaintiffs are likely to
succeed on the merits and the district court reached the opposite conclusion
because it made errors of law. Therefore, review is de novo as to those questions.
Pom Wonderful LLC, 775 F.3d at 1123. Most of the district court’s opinion
involves a mixed question of law and fact. In election cases, as with other appeals,
we review such decisions de novo. United States v. Blaine County, Montana, 363
F.3d 897, 909 (9th Cir. 2004).
3
2016) (en banc). As Public Integrity Alliance recognized, the Supreme Court
established the appropriate standard of review for laws regulating the right to vote
in Burdick v. Takushi, 504 U.S. 428 (1992). As we explained in Public Integrity
Alliance:
Under Burdick’s balancing and means-end fit framework, strict
scrutiny is appropriate when First or Fourteenth Amendment rights
“are subjected to ‘severe’ restrictions.” Id. (quoting Norman v. Reed,
502 U.S. 279, 289, 112 S. Ct. 698, 116 L. Ed. 2d 711 (1992)). “But
when a state election law provision imposes only ‘reasonable,
nondiscriminatory restrictions’ upon the First and Fourteenth
Amendment rights of voters, ‘the State’s important regulatory
interests are generally sufficient to justify’ the restrictions.” Id.
(quoting Anderson, 460 U.S. at 788, 103 S. Ct. 1564).
Pub. Integrity All., 2016 WL 4578366, at *3.
However, rather than reviewing H. B. 2023 under a balancing and means-
end fit analysis, the district court conducted a rational basis review, committing
legal error.2
2
The majority concludes that because Arizona’s regulatory interests are
sufficient to justify the “minimal burden” imposed by H.B. 2023, “the district court
was not required to conduct a means-end fit analysis here.” Maj. Op. at 47–48.
That is an erroneous interpretation of Supreme Court and our precedent. “The
Supreme Court delineated the appropriate standard of review for laws regulating
the right to vote in Burdick v. Takushi[:]” it is a “balancing and means-end fit
framework.” Pub. Integrity All., 2016 WL 4578366, at *3. A court may not avoid
application of a means-end fit framework in favor of rational basis review simply
by concluding that the state’s regulatory interests justify the voting burden
imposed. Moreover, Burdick tells us that in weighing “the character and
magnitude of the asserted injury” against the “precise interests put forward by the
State as justifications for the burden imposed by its rule,” we must take into
4
The second, and more important legal error, was that the district court
misapplied the analysis required by Burdick and Anderson v. Celebrezze, 460 U.S.
780, 789 (1983). Under Anderson-Burdick, the court must weigh the nature and
magnitude of the burden imposed by the law against the state’s interest and
justification for it. Nader v. Brewer, 531 F.3d 1028, 1034 (9th Cir. 2008).
The burden of the law on Arizona minority voters is substantial and occurs
in both urban and rural areas of the state. The uncontradicted evidence presented
to the district court showed that a substantial number of minority voters used ballot
collection as their means of voting. As Maricopa Board of Supervisors Steve
Gallardo testified: “ballot collectors are used in large part by Latino and Native
American groups and [ballot collecting] has come to be critical in enabling voters
in those communities to exercise their fundamental right to vote.”
The record demonstrated that, in many rural areas with a high proportion of
minority voters, home mail delivery was not available, and it was extremely
difficult to travel to a post office. No one contested the fact that the rural
communities of Somerton and San Luis, which are comprised of 95.9% and 98.7%
Hispanic voters, respectively, were without home mail delivery and reliable
consideration “the extent to which those interests make it necessary to burden the
plaintiff’s rights.” 504 U.S. at 434. In this case, the State’s asserted interest does
not make necessary the substantial burden on the voting rights of minorities.
Simply put, the State’s end does not fit the means employed.
5
transportation. As the representative for that district testified, “[b]ecause many of
these voters are elderly and have mobility challenges, it is a common practice in
this area to have one neighbor pick up and drop off mail for others on their street as
a neighborly service.” The representative noted that there is only one post office,
which is located across a highway crowded with cars waiting to cross the border,
and is virtually inaccessible by foot.
Another example of the impact of the law on minority voters is the Tohono
O’odham Indian Nation. The Tohono O’odham reservation constitutes over 2.8
million acres in the Sonoran desert. It is an area larger than Rhode Island and
Delaware, and approximates the size of Connecticut. It has about 14,000
registered voters. It does not have home mail delivery. It has one post office,
which is over 40 miles away from many residents. The evidence in this case shows
that restrictions on ballot collection affect the Tohono O’odham tribe significantly.
No one contested the fact that the members of the Tohono O’odham Indian Nation
have limited access to a postal service and no home mail delivery.
Similarly, no one disputed that members of the Cocopah Indian Tribe do not
have home mail delivery or easy access to a post office. The Cocopah Reservation
is located along the lower Colorado River, south of Yuma, Arizona. The Cocopah
6
Reservation comprises approximately 6,500 acres, with approximately 1,000 tribal
members who live and work on or near the Reservation.
As to urban areas, record evidence demonstrated that the burden of the law
affected minority voters the most because of socioeconomic factors. Minority
voters in urban areas were more likely to be economically disadvantaged. The
record showed that many minority urban voters lived in places with insecure mail
delivery; that many minority urban voters were dependent upon public
transportation, which made election day in-person voting difficult; that many
minority voters worked several jobs, making it difficult to take time off work to
vote in person; and that many infirm minority voters did not have access to
caregivers or family who could transmit ballots.
Martin Quezada, State Senator for Arizona’s Twenty-Ninth Senate District
testified that:
I represent approximately 213,000 constituents, nearly 80% of which
are ethnic minorities. In particular, Hispanic citizens comprise 67%
of the population of my district, the highest percentage of any district
in the state of Arizona. My district is a working-class community, and
many of my constituents depend on public transportation. [ . . . ]
Many of my constituents were severely burdened by the long lines
and lack of polling locations in the 2016 presidential preference
election. My entire district only had one vote center, in Maryvale, to
service the nearly 70,000 registered voters . . . .
7
The President of a nonprofit organization comprised of Latino citizens and
community leaders testified that many minorities required assistance in making
sure that they were following the proper voting procedure, and in low income areas
they were concerned about the security of their mailboxes.
Further complicating voting in Arizona’s urban areas is that there are not
only few places to vote, but that the polling locations change frequently. Indeed,
because the City of Phoenix elections are run independently by the City, a voter
might have to go to two different polling places to cast ballots on election day.
According to the Executive Director of a nonprofit organization working primarily
in low-income African-American and Latino neighborhoods, this confusion
significantly burdened those communities because many minorities had difficulty
navigating the voting process, especially those Spanish-speaking voters who were
not also fluent in English. The record also showed that election administrators
were prone to make errors with Spanish-language materials. Those voters
encounter significant hurdles at polling places. Thus, the opportunity for early
voting is especially important for those citizens.
The district court and the State dismiss the burdens imposed on minority
voters seeking to vote early as attacks on a process that provides only a “more
convenient” means of voting. However, when 80% of the electorate uses early
8
absentee voting as the method by which they cast their ballots, the method has
transcended convenience and has become instead a practical necessity. Thus, when
severe burdens are placed on this form of voting, it has a significant impact on
elections and the right to vote.
Against this burden, the state’s justification for the law was weak. The state
identified its interest as preventing voter fraud. However, the sponsors of the
legislation could not identify a single example of voter fraud caused by ballot
collection. Not one. Nor is there a single example in the record of this case. The
primary proponent of the legislation admitted there were no examples of such
fraud, but that the legislation was based on the speculative theory that fraud could
occur. A study by the Arizona Republic found that, out of millions of ballots cast
from 2005 to 2013, there were only 34 cases of fraud prosecution. All involved
voting by felons or non-citizens. None involved any allegation of fraud in ballot
collection. And none of the cases resulted in a conviction. A study by the National
Republican Lawyers Association, which was dedicated to finding voter fraud and
investigated evidence of potential fraud between 2000 and 2011, uncovered no
example of fraud resulting from the collection and delivery of early ballots in
Arizona. A follow-up analysis through May of 2015 failed to uncover any
examples of ballot collection fraud. The plaintiffs produced numerous affidavits
9
that attested that no one associated with ballot collection had ever witnessed any
voter fraud. Further, the record indicated that there are effective processes in place
to handle any ballot that exhibits any signs that tampering has occurred. The
Director of Elections for Maricopa County, the most populated county in Arizona,
with a population of four times the next most populated county, testified at the
legislative hearings that the County was well equipped to deal with voter fraud.
Under state election procedure, voters can check the status of their ballot at any
time. In short, the specter of voter fraud by ballot collection is much like the
vaunted opening of Al Capone’s vault: there is simply nothing there.
Thus, when one balances the serious burdens placed on minorities by the law
against the extremely weak justification offered by the state, one can only conclude
under the Anderson-Burdick analysis that the plaintiffs have established a
likelihood of success on the merits of their Fourteenth Amendment claim.3 Based
3
The majority asserts that plaintiffs in this case are bringing a facial challenge
to H.B. 2023 and they therefore bear a “heavy burden of persuasion” because such
challenges “raise the risk of premature interpretation of statutes.” Maj. Op. at 40
(internal quotations omitted). It is worth noting that neither the plaintiffs nor the
defendants categorize the challenge to H.B. 2023 as a facial challenge; only the
majority opinion does so. It is also worth noting that securing a court’s
interpretation of the effects of H.B. 2023 before the law is enforced is the point of
seeking a preliminary injunction. But for my part, I think this is a distinction
without a difference because “[t]he underlying constitutional standard [in an as
applied challenge] . . . is no different th[a]n in a facial challenge.” Legal Aid Servs.
of Or. v. Legal Servs. Corp., 608 F.3d 1084, 1096 (9th Cir. 2010) (quoting
Velazquez v. Legal Servs. Corp., 462 F.3d 219, 228 (2d Cir. 2006)). “Facial and
10
on the mostly uncontroverted record, the district court erred in misapplying
Anderson-Burdick.4
III
The district court also erred in denying the motion for a preliminary
injunction based on the Voting Rights Act claims. The Voting Rights Act of 1965
“was designed by Congress to banish the blight of racial discrimination in voting,
which has infected the electoral process in parts of our country for nearly a
century.” State of S.C. v. Katzenbach, 383 U.S. 301, 308 (1966) abrogated by
Shelby Cty., Ala. v. Holder, __ U.S. __, 133 S. Ct. 2612 (2013). The Act
“implemented Congress’ firm intention to rid the country of racial discrimination
in voting. It provided stringent new remedies against those practices which have
as-applied challenges differ in the extent to which the invalidity of a statute need be
demonstrated (facial, in all applications; as-applied, in a personal application).
Invariant, however, is the substantive rule of law to be used. In other words, how
one must demonstrate the statute’s invalidity remains the same for both types of
challenges, namely, by showing that a specific rule of law, usually a constitutional
rule of law, invalidates the statute, whether in a personal application or to all.”
Velazquez, 462 F.3d at 228 (emphasis in original).
4
Plaintiffs assert an additional Constitutional claim under the First
Amendment. In my view, the district court erred in concluding that H. B. 2023 did
not burden their First Amendment associational rights. However, in my view, the
district court did not abuse its discretion in denying a preliminary injunction based
on this independent claim.
11
most frequently denied citizens the right to vote on the basis of their race.” Allen v.
State Bd. of Elections, 393 U.S. 544, 548 (1969).
The central purpose of the Act was “[t]o enforce the fifteenth amendment to
the Constitution of the United States.” Chisom v. Roemer, 501 U.S. 380, 383
(1991) (quoting Pub.L. 89–110, 79 Stat. 437, 42 U.S.C. § 1973 et seq.). The
Fifteenth Amendment provides that “[t]he right of citizens of the United States to
vote shall not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.” U.S. Const. amend.
XV, § 1.
At issue in this case is § 2 of the Act, which is “a restatement of the Fifteenth
Amendment.” Roemer, 501 U.S. at 392. Section 2 provides, without limitation,
that any voting qualification that denies citizens the right to vote in a
discriminatory manner violates the Voting Rights Act. 42 U.S.C. § 1973; see also
Allen, 393 U.S. at 566–67 (noting that Congress intentionally chose the expansive
language “voting qualifications or prerequisite to voting, or standard, practice, or
procedure” for § 2 so as to be “all-inclusive of any kind of practice” that might be
used by states to deny citizens the right to vote (internal quotation marks omitted)).
As amended in 1982, § 2 makes “clear that certain practices and procedures that
result in the denial or abridgment of the right to vote are forbidden even though the
12
absence of proof of discriminatory intent protects them from constitutional
challenge.” Roemer, 501 U.S. at 383–84.
To succeed on a § 2 claim, a plaintiff must show (1) that “the challenged
standard, practice, or procedure must impose a discriminatory burden on members
of a protected class, meaning that members of the protected class have less
opportunity than other members of the electorate to participate in the political
process and to elect representatives of their choice” and (2) “that burden must in
part be caused by or linked to social and historical conditions that have or currently
produce discrimination against members of the protected class.” League of Women
Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014) (internal
quotations omitted); see also Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016).
The district court made a number of legal errors in its analysis of the § 2
claims, warranting reversal.
A
The district court erred in holding, as a matter of law, that § 2 requires proof
of the disparate impact of a law by “quantitative or statistical evidence comparing
the proportion of minority versus white voters who rely on others to collect their
early ballots.” As the State concedes, there is no case law supporting this
13
requirement; the district court relied only on cases it thought “strongly suggested”
it.
Although quantitative or statistical measures of comparing minority and
white voting patterns certainly may provide important analytic evidence, the
district court erred in concluding that they were the exclusive means of proof.
Indeed, the district court’s conclusion is belied by the words of the Voting Rights
Act itself, which provides that a violation of § 2 is “based on the totality of the
circumstances.” 52 U.S.C. § 10301(b) (emphasis added). The statute requires
evidence that members of the affected minority class “have less opportunity than
other members of the electorate to participate in the political process and to elect
representatives of their choice.” Id. (emphasis added). The statutory criterion is
incompatible with the district court’s restriction of proof to quantitative denial of
actual minority voting compared with white voting. The relevant question is
whether the challenged practice, viewed in the totality of the circumstances, places
a disproportionate burden on the opportunities of minorities to vote. Veasy, 830
F.3d at 244–45; League of Women Voters, 769 F.3d at 240. Even when analyzing
the second part of the § 2 test, which does require causality, statistical analyses are
not the exclusive method of showing a violation.5 Veasy, 830 F.3d 244. Indeed,
5
The majority opines that “[w]hile § 2 itself does not require quantitative
evidence, past cases suggest that such evidence is typically necessary to establish a
14
the Supreme Court has eschewed that approach in favor of consideration of various
factors. Gingles, 478 U.S. at 44–45. Rather than narrowly interpreting the Voting
Rights Act, the Supreme Court has emphasized its “broad remedial purpose of
rid[ding] the country of racial discrimination in voting” and has explained that it
provided “the broadest possible scope in combating racial discrimination.”
Roemer, 501 U.S. at 403. The district court’s mechanical formulation is also at
odds with the “totality of the circumstances” approach we underscored in Gonzales
v. Arizona, 677 F.3d 383, 406 (9th Cir. 2012). The district court’s restriction
constitutes legal error.
Even if we leave aside the irreconcilable conflict between the district court’s
proposed rule and the requirements of the governing statute, the district’s approach
is still fatally flawed.
disparate impact.” Maj. Op. at 26. The majority also notes that plaintiffs’ briefs
rely on vote dilution cases but not vote denial cases in arguing that statistical
evidence is not required to establish a § 2 violation. Maj. Op. at 26 fn. 11. I
perceive no reason why the type of § 2 case on which plaintiffs rely is of
consequence to their argument about what § 2 itself requires. Likely plaintiffs
could not rely on a vote denial case for the stated proposition because of the
practical reality that in a vote denial case, quantitative evidence of the effect of a
rule on voting behavior is only available after an election has occurred, at which
point the remedial purpose of the Voting Rights Act is no longer served. Plaintiffs
in vote dilution cases, in contrast, can often gather and analyze quantitative data
before an election. See, e.g., Thornburg v. Gingles, 478 U.S. 30 (1986).
15
First, quantitative measurement of the effect of a rule on the voting behavior
of different demographic populations must necessarily occur after the election.
One cannot statistically test the real world effect of a rule in the abstract; it can
only be measured by actual voting data. In other words, imposition of the district
court’s proposed rule would mean that there could never be a successful pre-
election challenge of the burdens placed on minority voting opportunity because no
data will have been generated or collected. The analysis could only occur after the
harm had been inflicted. That result cannot be squared with the broad remedial
purposes of the Voting Rights Act. The Fifth Circuit, in rejecting an approach
similar to the district court’s, acknowledged this problem, observing that requiring
such proof would “present[] problems for pre-election challenges . . . when no such
data is yet available.” Veasey, 830 F.3d at 260.
Second, the relevant data is not available in Arizona. The State concedes
that it does not collect the necessary data, and asserts that it should not bear that
burden in the absence of a law that requires it to do so. The State suggests that
plaintiffs should use data from those organizations who collect ballots. Of course,
that action would now be a felony. But leaving that aside, there would be no
practical way for the plaintiffs to collect comparative data by that method because
it is highly unlikely they could force competing organizational groups to collect
16
and supply the data. And such a method would not likely yield true comparative
results. At best, it would show that white voters and minority voters both have
used ballot collection as a means for casting their ballots. No one disputes that, nor
does anyone seriously dispute the fact that minority citizens are especially
dependent on ballot collection has a means of voting. Further, even if past data
were available, it still would not answer the district court’s query because the data
gathered would be pre-rule, and therefore not relevant as a means of assessing the
rule’s impact.
Third, the district court acknowledged the difficulty of obtaining the data
because “election and other public records often do not include racial or ethnic
data,” and noted that “[t]here is no getting around this problem.” Nonetheless, the
court held that the statute still required a threshold statistical showing, even though
collecting such evidence was likely impossible. That was not the intent of the
Voting Rights Act, and it is just such a circumstance that requires assessment of
the “totality of the circumstances.”
Fourth, in its examination of the plaintiffs’ evidence, the district court erred
in its comparative analysis. It faulted the plaintiffs for not showing comparative
data from other rural white-centric areas. But that is not the examination required
by the Voting Rights Act. Section 2 examines whether “members of the protected
17
class have less opportunity than other members of the electorate to participate in
the political process and to elect representatives of their choice.” Veasey, 830 F.3d
at 305; League of Women Voters of N.C., 769 F.3d at 240 (emphasis added). It
does not test opportunity against “other members of the electorate” who are
“similarly situated.” Thus, contrary to the district court’s analysis, the comparison
is not with similarly situated white groups, but rather with the voting population as
a whole. If the district court’s assumption were correct, then literacy and poll tax
statutes would be constitutional because they placed the burdens on illiterate and
poor whites and blacks equally. Instead, the Voting Rights Act focuses on the
burdens disproportionately place on minorities in comparison with the general
voting population. Native American voters living on reservations have different
burdens as to transportation and mail access than urban white voters. A state may
not evade the requirements of § 2 by arguing that it equally applies to a subset of
white voters constituting a minuscule percentage of the white vote, when the
overall effect is the suppression minority voting.
And even if we were to take the district court’s analysis at face value, it fails
in consideration of the evidence in this case. The district court’s conclusion is at
odds with the evidence showing the law disproportionately burdens minorities. I
have previously described the situation faced by the Tohono O’odham Nation,
18
situated on 2.8 million acres, with limited access to a post office and no home mail
delivery. Everyone concedes that there is no white population analogue. There are
no white reservations in Arizona. There is no comparably sized rural area that
encompasses a white-majority population. The record evidence was plain and
uncontroverted: H.B. 2023 places a disproportionate burden on the voting
opportunities of members of the Tohono O’odham tribe in comparison with the
population of white voters.
The evidence provided by the plaintiffs showed a similar pattern in urban
areas. Minority voters encountered significant burdens in exercising their right to
vote. The reduced number of polling places meant that voters had to wait hours in
line to cast ballots. Low income voters had difficulty getting to the polls because
of their dependence on public transportation. Voters who were not fluent in
English had difficulty determining where to vote. Statistical evidence is not
needed to see that without ballot collecting, these voters will have less opportunity
than other members of the electorate to participate in the political process.
In sum, the district court committed legal error by requiring the plaintiffs to
show proof of the disparate impact of the law by “quantitative or statistical
evidence comparing the proportion of minority versus white voters who rely on
others to collect their early ballots.” That formulation is at odds with the
19
governing statute, which requires analysis by “totality of the circumstances” of
whether members of the affected minority class “have less opportunity than other
members of the electorate to participate in the political process and to elect
representatives of their choice.” 52 U.S.C. § 10301(b).
B
The district court also erred as a matter of law in its assessment of the
plaintiffs’ burden of proof. “[T]he burden of proof at the preliminary injunction
phase tracks the burden of proof at trial . . . .” Thalheimer v. City of San Diego,
645 F.3d 1109, 1116 (9th Cir. 2011). In a voting rights case, the plaintiff bears the
burden of proof at trial and must show a violation by a preponderance of the
evidence. Bartlett v. Strickland, 556 U.S. 1, 19–20 (2009). Thus, the parties
seeking a preliminary injunction in this case must show they are likely to prevail
on the merits; if the plaintiffs satisfy that burden, then the opposing parties bear the
burden of rejoinder. Thalheimer, 645 F.3d at 1116.
Here, the district court rejected plaintiffs’ tendered evidence because it was
not “compelling.” At the preliminary injunction stage, the plaintiff is not required
to present “compelling” evidence, but only to establish a likelihood of success by a
preponderance of the evidence. The district court also rejected the tendered
evidence as “anecdotal,” but the Supreme Court has considered and credited just
20
such evidence. At the preliminary injunction stage, plaintiffs were obligated to
show a likelihood of success in showing that “members of the protected class have
less opportunity than other members of the electorate to participate in the political
process and to elect representatives of their choice.”
Much of the evidence tendered by the plaintiffs as to this burden was not
controverted. As I have noted, no one contested the fact that the rural communities
of Somerton and San Luis, which are comprised of 95.9% and 98.7% Hispanic
voters, respectively, were without home mail delivery and reliable transportation.
No one contested the fact that the members of the Tohono O’odham Indian Nation
do not have home mail delivery. No one disputed that members of the Cocopah
Indian Nation do not have home mail delivery. The plaintiffs submitted
voluminous affidavits showing the burden that the restriction on ballot collection
would impose on minorities. The State did not contest the affidavits, but simply
dismissed the evidence as “anecdotal.” Thus, much of the evidence tendered by the
plaintiffs as to the disproportionate burden on minority voters was either
completely undisputed or uncontested.
However, once the plaintiffs had established the burden on minority voters,
the district court did not place the burden of rejoinder on the State. Rather, it
categorically rejected evidence based on personal knowledge as “anecdotal,” and
21
held that the plaintiffs were required to show that rural white voters were not
similarly burdened. In other words, once the plaintiffs had established the burden
on minority voters, the district court imposed a higher standard of proof, rather
than shifting the burden of rejoinder to the State. The record provides no
information as to rural white voters. The district court viewed that as fatal to the
plaintiffs’ claims. In fact, it meant that the plaintiffs had satisfied their threshold
requirements, and the State had failed to rejoin. The district court erred in holding
the plaintiffs to a higher evidentiary burden.
C
The district court did not reach the second prong of the § 2 analysis, namely,
whether the burden was in part caused by or linked to social and historical
conditions that have or currently produce discrimination against members of the
protected class. Nevertheless, the plaintiffs established a likelihood of success on
the second prong.
As to the second part of the analysis, the Supreme Court has identified
several factors to be taken into consideration, consistent with the legislative history
of the Voting Rights Act, namely:
(1) the extent of any history of official discrimination in the state or political
subdivision that touched the right of the members of the minority group to
register, to vote, or otherwise to participate in the democratic process;
22
(2) the extent to which voting in the elections of the state or political
subdivision is racially polarized;
(3) the extent to which the state or political subdivision has used unusually
large election districts, majority vote requirements, anti-single shot
provisions, or other voting practices or procedures that may enhance the
opportunity for discrimination against the minority group;
(4) if there is a candidate slating process, whether the members of the
minority group have been denied access to that process;
(5) the extent to which members of the minority group in the state or
political subdivision bear the effects of discrimination in such areas as
education, employment and health, which hinder their ability to participate
effectively in the political process;
(6) whether political campaigns have been characterized by overt or subtle
racial appeals; and
(7) the extent to which members of the minority group have been
elected to public office in the jurisdiction.
Gingles, 478 U.S. at 37. In addition, the Court added that in some cases, there was
probative value in inquiring “whether there is a significant lack of responsiveness
on the part of elected officials to the particularized needs of the members of the
minority group” and “whether the policy underlying the state or political
subdivision’s use of such voting qualification, prerequisite to voting, or standard,
practice or procedure is tenuous.” Id. (citing S. Rep., at 28–29, U.S.Code Cong. &
Admin. News 1982, pp. 206–207).
23
As to the first factor, the extent of any history of official discrimination in
the state or political subdivision that touched the right of the members of the
minority group to register, to vote, or otherwise to participate in the democratic
process, Arizona has had a long history of imposing burdens on minority voters.
In 1912, shortly after gaining statehood, Arizona imposed a literacy test for voting.
In Cochise and Pima Counties, the denial of the right to vote meant that nearly half
the precincts lacked enough voters to justify holding primary elections in 1912.
From 1912 to the early 1960s, election registrars applied the literacy test to reduce
the ability of African Americans, Native Americans, and Hispanics to register to
vote. In an action filed against Arizona to enforce the Voting Rights Act, the
United States Justice Department estimated that 73,000 people could not vote
because of the existence of the literacy test.
The passage of the Voting Rights Act in 1965 caused the suspension of the
literacy test in Arizona, but the statute remained in effect until it was repealed in
1972, after Congress banned its use in 1970 through an amendment to the Voting
Rights Act. Arizona subsequently unsuccessfully challenged the Congressional
ban on literacy tests. Oregon v. Mitchell, 400 U.S. 112, 118 (1970). In Mitchell,
the Court noted that, in Arizona, only two counties out of eight with Hispanic
populations in excess of 15% showed voter registration equal to the state-wide
24
average. Id. at 132. In the 1960s, there were a number of initiatives to discourage
minority voting in Arizona, such as “Operation Eagle Eye.” Under Operation
Eagle Eye, minority voters were challenged at the pools on a variety of pretexts,
with the goal of preventing minority voting or slowing down the process to create
long lines at the polls and discourage voting.
Native Americans in Arizona especially suffered from voting restrictions.
Although Native Americans were U.S. citizens, the Arizona Supreme Court held in
1928 that they could not vote because they were under federal guardianship.
Porter v. Hall, 271 P. 411, 419 (Ariz. 1928). Even after that ban was overruled in
1948 in Harrison v. Laveen, 196 P.2d 456 (Ariz. 1948), Native Americans faced
significant obstacles to voting. See generally, Patty Ferguson-Bohnee, The History
of Indian Voting Rights in Arizona: Overcoming Decades of Voter Suppression, 47
Ariz. St. L. J. 1099, 1112 (2015).
Because of its long history of imposing burdens on minority voting, Arizona
became one of nine states subject to the pre-clearance requirements of the Voting
Rights Act after it was amended in 1975 to protect language minorities. 40 Fed.
Reg. 43746. Under the pre-clearance provision, Arizona was required to obtain the
approval of the United States Department of Justice before implementing any law
affecting the voting rights and representations of minorities. Since 1982, the
25
Department of Justice has vetoed four statewide redistricting plans proposed by
Arizona that appeared to discriminate against minorities. When Arizona was
subject to the pre-clearance requirements of § 5, a bill precluding or criminalizing
ballot collection passed the Arizona legislature, but was ultimately repealed due to
concerns about Justice Department approval. In 2013, the Arizona legislature
passed a measure banning partisan ballot collection, the violation of which was a
misdemeanor. It was repealed after its repeal was placed on the ballot by
referendum. The plaintiffs established a likelihood of success as to the first factor.
As to the second factor, the extent to which voting in the elections of the
state or political subdivision is racially polarized, Arizona has had a history of
racially polarized voting. The plaintiffs provided expert testimony detailing the
history of polarized voting. Statistical analysis showed the sharp polarization
between white and non-white voters.
For the reasons described in the discussion of factor one, the plaintiffs
demonstrated a likelihood of success as to factor three, namely, the extent to which
the state or political subdivision has used unusually large election districts,
majority vote requirements, anti-single shot provisions, or other voting practices or
procedures that may enhance the opportunity for discrimination against the
minority group.
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Because the voting access issues affect the right to vote for a candidate, the
fourth factor concerning the candidate slating process is not relevant.
The fifth factor, the extent to which members of the minority group in the
state or political subdivision bear the effects of discrimination in such areas as
education, employment and health, which hinder their ability to participate
effectively in the political process, falls decisively in favor of the plaintiffs. The
plaintiffs tendered significant evidence showing that Arizona minorities suffered in
education and employment opportunities, with disparate poverty rates, depressed
wages, higher levels of unemployment, lower educational attainment, less access to
transportation, residential transiency, and poorer health.
The plaintiffs also provided substantial evidence as to the sixth factor,
namely, whether political campaigns have been characterized by overt or subtle
racial appeals.
Finally, the plaintiffs provided evidence supporting the seventh Gingles
factor, namely, the extent to which members of the minority group have been
elected to public office in the jurisdiction. As of January 2016, Hispanics
constituted over 30% of the population, but held only 19% of the seats in the
Arizona legislature. African-Americans made up 4.7% of the population, but held
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1% of the legislative seats. Native Americans fared slightly better, constituting
5.3% of the population and holding 4.4% of the legislative seats.
But the Gingles factors are not the end of the story. We are obligated to look
to the “totality of the circumstances.” 52 U.S.C. § 10301(b). In this election, in-
person voting opportunities are significantly hindered by lack of polling places and
significant changes in polling places, all of which have caused extraordinarily long
lines for voting in person, up to six hours in some locations. This hindrance to in-
person voting falls most heavily on minorities. So, the cited “opportunities” for
alternate voting are illusory. H. B. 2023 has now imposed additional significant
burdens on minorities as to their ability to cast their ballots early through the
popular means of ballot collection. The totality of the circumstances of this
election, coupled with the historic discrimination in Arizona’s electoral politics are
sufficient to satisfy the second § 2 requirement. In sum, the plaintiffs established a
likelihood of success in proving the Gingles factors at stage two of the § 2 analysis.
D
The plaintiffs established a likelihood of success on the § 2 Voting Rights
Act claim. They established that the criminalization of ballot collection meant that
minority voters had less opportunity than other members of the electorate to elect
representatives of their choice, and that the burden in part was caused by or linked
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to social and historical conditions that have or currently produce discrimination
against minorities.
IV
The district court should have granted the motion for a preliminary
injunction. The district court made a number of legal errors. The plaintiffs
established that the anti-ballot-collection law significantly burdens the voting
rights of minorities, particularly Hispanic and Native American voters. The State’s
justification of preventing voter fraud was not, and is not, supportable. One of the
most popular and effective methods of minority voting is now a crime. H. B. 2023
violates the Constitution and the Voting Rights Act.
There are many burdens and challenges faced in Arizona by Native
Americans, Hispanics, African-Americans, the poor, and the infirm who do not
have caregivers or family. With H.B. 2023, Arizona has added another:
disenfranchisement.
I respectfully dissent.
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