Leslie Feldman, et al v. Arizona Secretary of State's O, et al

Filing

Filed Order for PUBLICATION (SIDNEY R. THOMAS) Filed Order for PUBLICATION (SIDNEY R. THOMAS) (Dissent by Judge O'Scannlain, Concurrence by Judge Reinhardt) Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. Judges Kozinski and McKeown did not participate in the deliberations or vote in this case. [10183578]

Case: 16-16698, 11/02/2016, ID: 10183578, DktEntry: 68-3, Page 1 of 4

FILED
NOV 02 2016

Feldman v. Arizona, No. 16-16698

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

O’SCANNLAIN, Circuit Judge, with whom TALLMAN, CALLAHAN, BEA, and
IKUTA, Circuit Judges, join, dissenting from the grant of rehearing en banc:
We have made a serious mistake by granting rehearing en banc. Our court
risks present chaos and future confusion in pursuit of an outcome the Supreme
Court has explicitly told us to avoid. There are no good reasons—and many bad
ones—to take this case en banc six days before the election on such a compressed
schedule. Sadly, a majority of this court has ignored such dangers in its unseemly
rush to overrule, by any means necessary, a five-day old opinion. One hopes cooler
heads prevail and this case receives the attention it deserves—but I fear instead a
shoot-first, ask questions later approach that will haunt us for years to come.
I
A brief background: On September 23, 2016, the district court denied
plaintiffs’ motion for a preliminary injunction blocking Arizona from
implementing certain provisions in Arizona House Bill 2023. These provisions
restrict the collection of voters’ early ballots to family members, household
members, certain government officials, and caregivers. Plaintiffs appealed. A
Ninth Circuit motions panel unanimously denied plaintiffs’ emergency motion for
an injunction pending appeal on October 11th. On October 14th that same panel

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sua sponte amended its October 11th ruling to expedite the appeal. In fourteen
days a merits panel received briefing, heard oral argument, and issued an opinion
affirming the district court and denying the request for a preliminary injunction by
a two to one majority. The case was called en banc the same day the opinion was
issued (October 28th). Eschewing our normal en banc schedule, memo exchange
and voting took place over five days.
Why the rush?
II
A
The closer we are to election day the more a preliminary injunction is
disfavored. See, e.g., Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012) (staying
a district court’s injunction “given the imminent nature of the election”).1 Early
voting began in Arizona on October 12th. Upsetting the applecart 90% of the way
through voting by issuing an injunction a couple of days before November 8th
1

Other circuits have repeatedly recognized that this kind of meddling right
before an election is almost never appropriate. 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.”).
2

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would fly in the face of Supreme Court guidance counseling against this exact type
of last-minute interference. Purcell v. Gonzalez, 549 U.S. 1, 4–6 (2006) (vacating a
Ninth Circuit injunction against the State of Arizona because of “the imminence of
the election and the inadequate time to resolve the factual disputes”).2 We should
follow other circuits and respect Purcell. See, e.g., Crookston v. Johnson, No. 162490, 2016 WL 6311623 (6th Cir. Oct. 28, 2016) (“Call it what you will — laches,
the Purcell principle, or common sense — the idea is that courts will not disrupt
imminent elections absent a powerful reason . . . .”).
B
A second serious problem is that we risk creating a mess of current law by
trying to produce a ruling under self-imposed time pressure. The en banc court
could render a decision in the next five days in hopes of enjoining Arizona’s law
2

The majority may argue that the importance of ensuring everyone has the
right to vote trumps any concern about jumping the gun or improperly interfering
in an election. But, Purcell addressed this exact question, and the Supreme Court
decided 9-0 against the position the majority espouses. Indeed, the law at issue in
that case, identification requirements, affected far more people and potentially took
away their right to vote entirely, whereas this law affects fewer voters and only
restricts one aspect of one way of early voting. Id. at 2–3; see also Crawford v.
Marion County Election Bd., 553 U.S. 181, 187–88 (2008) (discussing potential
reach of ID law). We cannot overturn Supreme Court precedent, even if some
judges wish it were otherwise. See, e.g., Richter v. Hickman, 578 F.3d 944 (9th Cir.
2009), rev’d, Harrington v. Richter, 562 U.S. 86 (2011) (“[J]udicial disregard [for
sound and established principles] is inherent in the opinion of the Court of Appeals
for the Ninth Circuit here under review.”).
3

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before election day and then deal with the consequences of its decision later. Or, it
could take whatever time it deems necessary to gain a thorough mastery of the
record, to hear oral argument from the parties, and to write a considered opinion in
plenty of time for the next election. This case has an extensive record and could
potentially set an important precedent.
“Allowing the election to proceed without enjoining the statutory provisions
at issue will provide the courts with a better record on which to judge their
constitutionality. . . . Given the importance of the constitutional issues, the Court
wisely takes action that will enhance the likelihood that they will be resolved
correctly on the basis of historical facts rather than speculation.” Purcell, 549 U.S.
at 6 (J. Stevens, concurring).
We should heed Justice Stevens’s advice.
III
I respectfully dissent from the ill-advised order granting rehearing en banc
under these contrived conditions.

4