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


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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Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 1 of 18 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...) Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 2 of 18 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 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 3 of 18 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 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 4 of 18 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 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 5 of 18 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.). 5 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 6 of 18 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 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 7 of 18 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 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 8 of 18 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 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 9 of 18 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). 9 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 10 of 18 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 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 11 of 18 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 11 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 12 of 18 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 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 13 of 18 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). 13 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 14 of 18 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” 14 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 15 of 18 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. 15 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 16 of 18 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. 16 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 17 of 18 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. 17 Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-3, Page 18 of 18 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

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