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

Filing

Filed Order for PUBLICATION (SIDNEY R. THOMAS, DIARMUID F. O'SCANNLAIN, WILLIAM A. FLETCHER, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, JAY S. BYBEE, CONSUELO M. CALLAHAN, N. RANDY SMITH, MARY H. MURGUIA, PAUL J. WATFORD and JOHN B. OWENS)(Chief Judge Thomas, authoring, Judges O'Scannlain and Bybee, and NR Smith, dissenting from the Order) We granted, in a prior order, rehearing en banc in this appeal. In a separate order, filed concurrently with this opinion, we scheduled en banc oral argument for the week of January 17, 2017, in San Francisco, California. The question, then, is whether to grant plaintiffs motion for an injunction pending appeal. A motions panel denied the motion in the first instance, but we may reconsider that decision as an en banc court. For the reasons stated herein, we grant the motion. (SEE ORDER FOR FULL TEXT) In short, the injunction applies to the operation of a statute that would impose felony sanctions on third parties for previously legal action in connection with elections when, as everyone concedes, the statute has no impact on the election process itself. We are preserving the status quo for this election, and we will consider the challenge to the new legislation at our en banc hearing in the next few months. IT IS SO ORDERED. [10186580] --[Edited: Order corrected to include Judge NR Smith's dissent to Order. 11/04/2016 by TYL]

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FILED
NOV 04 2016

Feldman v. Arizona Sec’y of State, No. 16-16698

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

O’SCANNLAIN, Circuit Judge, with whom CLIFTON, BYBEE, and
CALLAHAN, Circuit Judges, join, and with whom N.R. SMITH, Circuit Judge,
joins as to Parts I, II, and III, dissenting from the order enjoining the State of
Arizona:
The court misinterprets (and ultimately sidesteps) Purcell v. Gonzalez, 549
U.S. 1 (2006), to interfere with a duly established election procedure while voting
is currently taking place, contrary to the Supreme Court’s command not to do so. I
thus respectfully dissent from this order enjoining the state of Arizona from
continuing to follow its own laws during an ongoing election. And let there be no
mistake: despite the majority’s pretenses to the contrary, the order granting the
injunction is a ruling on the merits, and one based on an unnecessarily hasty review
and an unsubstantiated statutory and constitutional analysis.1
1

The order alternately discusses whether to grant an “injunction” pending
appeal, Order at 2, and a “stay” pending appeal, id. at 2, 8. Stays and injunctions
are two different things: a stay postpones the judgment or order of a court; an
injunction, of course, commands or prohibits action by a third party. See, e.g., Fed.
R. App. P. 8 (Stay or Injunction Pending Appeal); “Injunction,” Black's Law
Dictionary (10th ed. 2014); “Stay,” Black’s Law Dictionary (10th ed. 2014).
Because before today no court has ordered Arizona not to enforce H.B. 2023, the
majority presumably means that today it issues an injunction against the State from
(continued...)

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I
Some background: On September 23, 2016, the district court denied
plaintiffs’ motion for a preliminary injunction blocking Arizona from
implementing certain provisions in Arizona House Bill 2023 (H.B. 2023). These
provisions limit the collection of voters’ early 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 11. That same panel sua
sponte amended its October 11 ruling to expedite the appeal on October 14. A
merits panel received briefing, heard oral argument, and issued an opinion on
October 28, affirming the district court and denying the request for a preliminary
injunction by a two-to-one majority. The case was called en banc the same day the
opinion was issued. Eschewing our normal en banc schedule, memo exchange was
compressed into five days, as opposed to our customary thirty-five. Now, just two
days after the en banc call succeeded, and just four days before Election Day, the
majority overturns the district court, a motions panel, and a separate merits panel to
reach its desired result.

1

(...continued)
enforcing a particular statute.
2

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II
The Supreme Court counseled against just this type of last-minute
interference in Purcell. That case also involved our court’s issuing a last-minute
injunction against the enforcement of a contested Arizona election law. 549 U.S. at
2–4. The Supreme Court, on October 20, 2006, vacated that injunction, which had
been implemented by a Ninth Circuit motions panel on October 5—more than four
weeks before the election. Id. at 2–3. In doing so, the Court stressed the
“imminence of the election” and the need to give the case adequate time to resolve
factual disputes. Id. at 5–6. Despite Purcell’s direct impact on this case, the
majority confines that decision much too narrowly, and in its strained attempt to
distinguish Purcell, disregards how this eleventh-hour injunction will impact the
current election and many elections to come.
At first, it seemed that we might respect Supreme Court precedent this time
around, when first the motions panel, and later the three-judge merits panel, wisely
determined that no injunction should issue at this stage. Yet, after a third bite at the
apple, here we are again—voiding Arizona election law, this time while voting is

3

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already underway2 and only four days before Election Day. In doing so we depart
from our own precedent, 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”), and myriad decisions of our sister circuits, see, e.g., Crookston v.
Johnson, No. 16-2490, 2016 WL 6311623, at *2 (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 . . . .”); 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”); ColonMarrero 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”). We also
disregard not only Purcell, but other Supreme Court authority disfavoring lastminute changes to election rules. See, e.g., North Carolina v. League of Women
Voters of N.C., 135 S. Ct. 6 (2014) (granting stay to prevent interference with
election procedures roughly one month before election).3 In all these cases, “the

2

Early voting in Arizona began more than three weeks ago, on October 12.

3

Likewise, the Court stayed a permanent injunction imposed by a district
court and affirmed by the Sixth Circuit on September 24, 2014, which would have
(continued...)
4

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common thread [was] clearly that the decision of the Court of Appeals would
change the rules of the election too soon before the election date.” Veasey, 769
F.3d at 895.
The majority recognizes the need to address Purcell and its progeny. But the
majority’s strained attempt to distinguish those cases is unconvincing—its
reasoning either misrepresents Purcell or is irrelevant to the issues at hand. And it
misses the main point of Purcell: the closer to an election we get, the more
unwarranted is court intrusion into the status quo of election law.
A
First, the majority makes the incomprehensible argument that its injunction
“does not affect the state’s election processes or machinery.” Order at 3. The
majority cites no law, fact, or source of any kind in support of this argument, and it
is dubious on its face. Of course, H.B. 2023 directly regulates the state’s election
processes or machinery: it governs the collection of ballots, which obviously is
3

(...continued)
required Ohio to add early in-person voting hours. See Husted v. Ohio State
Conference of N.A.A.C.P., 135 S. Ct. 42 (2014), rev’g sub nom. Ohio State
Conference of N.A.A.C.P. v. Husted, 768 F.3d 524 (6th Cir. 2014). And, in Frank
v. Walker, the Court vacated the Seventh Circuit’s September 26, 2014 stay of a
preliminary injunction enjoining application of Wisconsin’s voter ID law, which
had been put in place by the district court in April 2014. See 135 S. Ct. 7 (2014),
rev’g in part, Frank v. Walker, 769 F.3d 494 (7th Cir. 2014), rev’g, 768 F.3d 744
(E.D. Wis.).
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integral to how an election is conducted. But under the majority’s Orwellian logic,
regulations affecting get-out-the-vote operations are somehow not regulations of
the “electoral process.” (What are they, then, one might ask? The majority does not
tell.) Apparently, the majority believes that only measures that affect the validity of
a vote itself (or a voter herself) affect such process. Other courts, in ruling on
similar regulations, have rejected the majority’s view, and widely held that
regulations of many aspects of an election beyond the validity of a vote affect the
election process. See, e.g., Lair, 697 F.3d at 1214 (staying injunction of certain
campaign finance laws); see also Harris v. Graddick, 593 F. Supp. 128, 135 (M.D.
Ala. 1984) (observing that even the racial composition of polling officials could
affect the election process).
Tellingly, the majority barely addresses whether enjoining H.B. 2023 will
create confusion and disruption in the final days of the election—a key factor in the
Purcell decision. 549 U.S. at 4–5 (“Court orders affecting elections, especially
conflicting orders, can themselves result in voter confusion and consequent
incentive to remain away from the polls.”). And, based on this record, how could
it? Factual development in the record is sparse. The majority says its injunction
will be less disruptive than the Purcell injunction, but offers not a shred of
empirical proof for this proposition. Order at 3–5. At this point, it appears that no
6

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one knows just how much confusion this court risks by issuing this injunction,
after weeks of procedures suggested it would not.4 What we do know is that the
State has approximately four days to figure out and to implement whatever
response is necessary to accommodate our latest view of the case. If requiring such
action is inappropriate four weeks prior to Election Day, see Purcell, 549 U.S. at
3–4, it surely is in the waning days of voting. The Supreme Court could not have
been clearer: “[a]s an election draws closer, that risk [of disruption] will increase.”
Id. at 5.
B
The majority’s second argument—that this case is different because it
involves a law that imposes criminal penalties—manages to be both irrelevant and
incorrect. It is irrelevant because Purcell never says, or even indicates, that whether
a law imposes criminal penalties affects whether the status quo should be upset
right before an election. It is incorrect because our own circuit applied Purcell in a
case involving a law that affected the electoral process and imposed criminal
4

This lack of factual support is a recurring theme, and another reason this
court should wait until after the election to act. See Purcell, 549 U.S. at 6 (Stevens,
J., concurring) (“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.”). This court should “take[] action[s] that will enhance the
likelihood that [important factual issues] will be resolved correctly on the basis of
historical facts rather than speculation.” Id.
7

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penalties. See Lair, 697 F.3d at 1214 (staying an injunction that applied to
Montana campaign finance law enforced by criminal penalties).
C
Third, the majority misreads Purcell by inventing a supposed Purcell Court
concern that the federal judiciary was “disrupt[ing] long standing state procedures”
and then equating it with the majority’s desire to preserve the pre-H.B. 2023 status
quo. Order at 5. Nowhere in Purcell does the Court mention “long standing state
procedures.” Proposition 200, the voter identification law at issue in Purcell, had
been approved by Arizona voters in 2004 and was not precleared until May of
2005. 549 U.S. at 2. The 2006 election was the first federal election at which it
would go into effect. The voter identification law was relatively new, but, “[g]iven
the imminence of the election,” the Court overturned our injunction which would
have returned Arizona to a pre-Proposition 200 world, the majority's so-called
“status quo.” Id. at 5. Obviously, Purcell was actually concerned with changes to
the status quo that had occurred within weeks of an election.
And that status quo can be a law or an injunction that has been in place for
just a few months. See Frank, 135 S. Ct. at 7. In Frank, the Supreme Court vacated
the Seventh Circuit's September 26, 2014 stay of a preliminary injunction
enjoining application of Wisconsin's voter ID law, which had been put in place by
8

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the district court in April 2014. By the time the Seventh Circuit issued its decision,
the injunction had become the new “status quo,” even the dissent had to concede
the “colorable basis for the Court's decision.” Id. at 7 (Alito, J., dissenting). The
dissent noted that given the “proximity of the election,” it was “particularly
troubling that absentee ballots [relying on the injunction] ha[d] been sent out
without any notation that proof of photo identification must be submitted.” Id.
D
Fourth, the argument that “unlike the circumstances in Purcell and other
cases, plaintiffs did not delay in bringing this action” continues the majority’s
pattern of inventing facts. Order at 5. Nowhere in Purcell does the Supreme Court
discuss the timing of the plaintiffs’ filing. Nowhere does it say that the plaintiffs
affected their chances of success by delaying their filing. Nowhere does it use this
factor in its analysis. Indeed, as recounted above, the Supreme Court is far more
focused on the date of court orders that upset the status quo in relation to the date
of the election. See, e.g., League of Women Voters, 135 S. Ct. at 6 (staying an
injunction ordered by the Fourth Circuit a month before the election despite the
fact that plaintiffs challenged the statute at issue a year prior to the election).

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E
Finally, perhaps betraying its real motivation, the majority bafflingly
suggests that our last-minute intervention is required now that the Supreme Court
struck down the federal preclearance mechanism in Shelby County v. Holder, 132
S. Ct. 2612, 2631 (2013). But, whatever the majority might think of that opinion,
Shelby County has absolutely no relevance to the Court’s decision in Purcell.
The majority is correct about one basic point: in discussing the procedural
history in Purcell, the Supreme Court mentioned that the regulation at issue had
been precleared. 549 U.S. at 2. But the Court did not suggest that preclearance was
in any way relevant to its decision. Despite the majority’s oblique citation to
Purcell, one will not find any support in that decision for its statement that
preclearance meant the law in Purcell was presumptively valid—or that any such
presumption mattered at all to the question before the Court. Quite to the contrary,
the Supreme Court explicitly cautioned that it was not addressing the merits of the
claim in Purcell. Id. at 5 (“We underscore that we express no opinion here on the
correct disposition, after full briefing and argument, of the appeals [from the
district court] . . . .”).
Even if the majority believes that courts should engage in a heightened
review of voting laws after Shelby County—and I stress the Supreme Court has
10

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given us absolutely no reason to believe we should—that does not support the
notion that such review matters at this stage of litigation. Purcell is plainly about
the impact a court order will have on an upcoming (or in our case, ongoing)
election, not the merits of the constitutional claim underlying that order. Id. Preclearance, Shelby County, and the merits of the challenge to H.B. 2023 are beside
the point. Four days before an election is not an appropriate time for a federal court
to tell a State how it must reconfigure its election process.
III
Unfortunately, though I believe the merits should not have been reached
until a more thorough review of the case could have been conducted—and ideally
more evidence could have been collected, including quantitative data—the
majority’s decision to consider and then to grant an injunction pending appeal
forces the issue. In doing so, and given the current record, the majority, by
adopting Chief Judge Thomas’s dissent, makes various errors in both its
constitutional and federal statutory analysis that further undermine its argument
that an injunction is necessary. Order at 2 (adopting the reasoning of Feldman v.
Arizona Sec’y of State, No. 16-16698, 2016 WL 6427146, at *21–31 (9th Cir. Oct.
28, 2016) (Thomas, C.J., dissenting)). This situation means we are forced to reach

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the merits as well. See Order at 2 (citing Lopez v. Heckler, 713 F.2d 1432, 1435
(9th Cir. 1983)).
Unlike the majority, we are persuaded by the analysis of the vacated threejudge panel majority opinion and the district court opinion. Feldman, 2016 WL
6427146, at *1–21; Feldman v. Arizona Sec’y of State, No. CV-16-01065-PHXDLR, 2016 WL 5341180 (D.C. Ariz. Sept. 23, 2016) [hereinafter Feldman (D.C.)].
A few key points, some contained in those opinions, are worth highlighting. One
error in the majority’s reasoning stands out the most—its failure even to pretend to
give any deference to the district court’s denial of exactly the same request. See
Purcell, 549 U.S. at 5 (concluding that the failure of “the Court of Appeals to give
deference to the discretion of the District Court . . . was error”).
A
The majority’s Fourteenth Amendment analysis falsely claims the district
court improperly conducted a “rational basis” review. Feldman, 2016 WL
6427146, at *21 (Thomas, C.J., dissenting). Yet, the district court never used the
phrase “rational basis,” instead it explicitly stated that Arizona “must show [] that

12

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it[s law] serves important regulatory interests,” after it conducted the burden
analysis.5 Feldman (D.C.), 2016 WL 5341180, at *11.
The majority argues that H.B. 2023 imposes a “substantial burden” on
voting, but this cannot be reconciled with the fact six Justices in Crawford v.
Marion Cnty. Election Bd., 553 U.S. 181 (2008), found that Indiana’s voting ID
law imposed either a “a limited burden,” id. at 202 (Stevens., J., writing for three
justices), or a “minimal” one, id. at 204 (Scalia, J., writing for three justices). The
majority does not even try to argue that H.B. 2023 imposes more of a burden on
voters than the Indiana law, instead it just does not cite Crawford.
The majority argues that the “state’s justification for the law was weak.”
Feldman, 2016 WL 6427146, at *24 (Thomas, C.J., dissenting). This cannot be
reconciled with Crawford’s language that “[t]here is no question” that a state’s
interest in preventing voter fraud is an important interest. 553 U.S. at 194–197
(holding this even though there was no evidence in the record that the particular
type of voting fraud the law was trying to prevent has occurred). Arizona’s interest
in protecting public confidence in elections is also an established important

5

Rational basis review only requires the legislature to have some rational
reason for the law, even if it is not important and even if the judge, rather than the
legislature, proffers that reason. E.g., Williamson v. Lee Optical of Okla. Inc., 348
U.S. 483, 487–88 (1955).
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interest. Id. at 197. Once again the majority “solves” this problem by pretending
that Crawford does not exist.
B
The majority’s Voting Rights Act of 1965 (VRA) Section 2 analysis is
equally shoddy. 52 U.S.C. § 10301. It concedes that no statistical or quantitative
evidence exists in the record. Feldman, 2016 WL 6427146, at *27 (Thomas, C.J.,
dissenting). It concedes that “the Voting Rights Act focuses on the burdens
disproportionately place [sic] on minorities in comparison with the general voting
population.” Id. at 27 (emphasis added). It concedes that “[t]he relevant question is
whether the challenged practice . . . places a disproportionate burden on the
opportunities of minorities to vote.” Id. at 26. It concedes the burden lies with the
plaintiffs and that “the parties seeking a preliminary injunction in this case must
show they are likely to prevail on the merits.” Id. at 28.
Yet, it then argues that the district court erred by asking plaintiffs to show
the burden on minority voters was greater than that of white voters. Id. at 28–29.
But the plaintiffs had the burden of showing disparate treatment. Instead of
acknowledging that the current record’s lack of facts showing a disparate impact is
fatal to this claim, the majority invents a burden-shifting requirement. Id. at 21–22.
It argues that “once the plaintiffs had established the burden on minority voters”
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the district court erred by not “shifting the burden of rejoinder to the State.” Id. at
29. This burden-shifting requirement—which would require the state to prove a
negative (no disparity if minorities are burdened)—has no support in the law.
IV
Finally, the unusual procedural history leading up to this decision and the
contrived time pressure we placed ourselves under in rendering this decision
underscores exactly why courts refrain from intervening in elections at the last
minute unless they absolutely have to.6
After presumably fuller consideration than our own, a district court judge, a
three-judge motions panel, and a two-judge majority of a separate merits panel all
rejected Feldman’s attempt to have enforcement of H.B. 2023 enjoined for the
current election. Yet, with only three days of review (and no oral argument), a
majority of our hastily constructed en banc panel has reversed course, requiring
Arizona to change its voting procedures the weekend before Election Day. The
record presented in this appeal exceeds 3000 pages; the parties’ briefs (which now
total five, after additional en banc briefing) present complex and well-reasoned
arguments; and the alleged constitutional violations are serious. But our en banc
6

Sometimes we are forced to act under time pressure, such as death penalty
habeas review, but while the final orders may issue hours before execution, these
cases are usually the cumulation of years of carefully considered litigation.
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panel has found it appropriate (indeed imperative) to resolve the matter in less time
than we might usually take to decide a motion to reschedule oral argument.
Despite the majority’s pretenses to having “given careful and thorough
consideration” to the issues presented in this case, Order at 7, one wonders how
much the obvious dangers inherent in our rushed and ad hoc process have infected
the decision in this case. Cf. Purcell, 127 S. Ct. at 6 (Stevens, J., concurring)
(“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.”).
The circumstances of this case do not inspire confidence in the majority’s
order. First, the majority does not appear even to have resolved what to label the
relief it has determined must be handed down in this case.7 More concerning, and
as discussed above, the order fails seriously to grapple with controlling Supreme
Court precedent pertaining both to appropriateness of our action at this stage of
litigation and to the underlying merits of the issues in this case. The order also
wholly fails to explain why it is now necessary to overrule a unanimous order from
October 11—which was approved by one of the judges who now joins the
majority—denying an identical emergency motion in this same case. We are left
7

Supra note 1.
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only to wonder why that decision, acceptable four weeks ago, is now the cause for
immediate correction.
Worse still is the precedent this hastily crafted decision will create. The
majority purports to delay ruling on the merits of the challenge to H.B.
2023—presumably so that this case can be carefully considered. Order at 8. But it
“essentially” adopts the reasoning of a twenty-nine page dissent from the original
three-judge panel opinion, Order at 2, which concludes that it is clear “this law
violates the Constitution and the Voting Rights Act.” Feldman, 2016 WL 6427146,
at *21 (Thomas, C.J., dissenting). If our court agrees with the essence of that
dissent, what is left to decide after oral argument? The majority’s framing of this
issue as just a “stay,” Order at 8, only obfuscates the fact that our en banc panel has
blocked Arizona’s voting law, declared it presumptively unconstitutional, and
overturned the status quo the weekend before voting ends, all without first taking
the time needed to gain a thorough mastery of the record, to hear oral argument
from the parties, or to write a considered opinion.

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As the majority is quick to remind us, the issues in this case are important.8
Those issues deserved more than seventy-two hours of consideration. This court’s
hasty rush to decide those issues on the basis of ad hoc procedure is regrettable. I
fear our action in this case will set a precedent that will harm not only the current
election in Arizona, but presumably many more down the line, whenever a State
enacts a voting regulation that more than half of the active judges on the Ninth
Circuit simply deem unwise.
I respectfully dissent.

8

Indeed, the majority strongly implies the issues are so important that they
need to be decided right away. But every voting rights case pits similar arguments
about the fundamental right to vote against arguments about a State’s need and
right to regulate its elections. See, e.g., Crawford, 553 U.S. at 191.
To accept the majority’s argument that the importance of this case compels
action leaves one wondering what change in election law would not qualify as
important. Cf. Clingman v. Beaver, 544 U.S. 581, 593 (2005) (“To deem ordinary
and widespread burdens [on voting] like these severe would subject virtually every
electoral regulation to strict scrutiny, hamper the ability of States to run efficient
and equitable elections, and compel federal courts to rewrite state electoral
codes.”). This “importance” exception would whittle Purcell down to nothing. As
Justice Stevens explained in Purcell, it is precisely because these issues are
important that we should not rush to decide them. See, 549 U.S. at 6 (Stevens, J.,
concurring).
18