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]

Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-4, Page 1 of 9

FILED
NOV 04 2016

Feldman v. Arizona Secretary of State, No. 16-16698

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

Bybee, Circuit Judge, with whom Circuit Judges O’Scannlain, Clifton, Callahan,
and N.R. Smith join, dissenting:
I join in full Judge O’Scannlain’s dissent. I write separately to emphasize
two brief points: First, Arizona’s restrictions on who may collect an early
ballot—a question very different from who may vote by early ballot—follows
closely the recommendation of the bipartisan Commission on Federal Election
Reform. Second, the Arizona early ballot law at issue here is a common provision,
and similar restrictions on the collection of early or absentee ballots may be found
on the books of some twenty-one states. Those provisions have been in effect for
decades, and they have been enforced. Unless the Voting Rights Act means that
identical provisions are permissible in some states and impermissible in other
states, our decision would invalidate many of those provisions, including
provisions in other states of the Ninth Circuit.
I
There is no constitutional or federal statutory right to vote by absentee
ballot. See McDonald v. Bd. of Election Comm’rs of Chic., 394 U.S. 802, 807–08
(1969) (“It is thus not the right to vote that is at stake here but a claimed right to
receive absentee ballots. . . . [T]he absentee statutes, which are designed to make

Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-4, Page 2 of 9

voting more available to some groups who cannot easily get to the polls, do not
themselves deny . . . the exercise of the franchise . . . .”); see also Crawford v.
Marion Cty. Election Bd., 553 U.S. 181, 209 (2008) (Scalia, J., concurring in the
judgment) (“That the State accommodates some voters by permitting (not
requiring) the casting of absentee or provisional ballots, is an indulgence—not a
constitutional imperative that falls short of what is required.”); Grifffin v. Roupas,
385 F.3d 1128, 1130 (7th Cir. 2004) (rejecting the claim that there is “a blanket
right of registered voters to vote by absentee ballot;” “it is obvious that a federal
court is not going to decree weekend voting, multi-day voting, all-mail voting or
Internet voting”).
Arizona’s restrictions on the collection and handling of absentee ballots are
neutral provisions designed to ensure the integrity of the voting process. Although
the majority claims that there is no evidence of “voter fraud caused by ballot
collection,” Maj. Op. at 2, (adopting Feldman v. Ariz. Sec’y of State, --- F.3d ---,
2016 WL 6427146 *24 (9th Cir. 2016) (Thomas, C.J., dissenting)), Arizona does
not have to wait until it possesses such evidence before it acts. It may be proactive, rather than reactionary. And the evidence for voter fraud in the handling of
absentee ballots is well known. In 2005, the bi-partisan Commission on Federal

2

Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-4, Page 3 of 9

Election Reform1 found: “Absentee ballots remain the largest source of potential
voter fraud.” Comm’n on Fed. Elections Reform, Building Confidence in U.S.
Elections 46 (2005) [hereinafter Building Confidence]. As the Seventh Circuit so
colorfully described it: “Voting fraud is a serious problem in the U.S. elections
generally . . . and it is facilitated by absentee voting. . . . [A]bsentee voting is to
voting in person as a take-home exam is to a proctored one.” Griffin, 385 F.3d at
1130–31; see also Wrinn v. Dunleavy, 440 A.2d 261, 270 (Conn. 1982) (“[T]here
is considerable room for fraud in absentee voting and . . . a failure to comply with
the regulatory provision governing absentee voting increases the opportunity for
fraud.” (citation omitted)); Adam Liptak, Error and Fraud at Issue as Absentee
Voting Rises, N.Y. Times (Oct. 6, 2012), http://nyti.ms/QUbcrg (discussing a
variety of problems in states).
The Commission on Federal Election Reform recommended that “States . . .
should reduce the risks of fraud and abuse in absentee voting by prohibiting ‘thirdparty’ organizations, candidates, and political party activists from handling
absentee ballots.” Building Confidence, supra, at 46. It made a formal
1

The Commission on Federal Election Reform was organized by American
University’s Center for Democracy and Election Management and supported by
the Carnegie Corporation of New York, The Ford Foundation, the John S. and
James L. Knight Foundation, and the Omidyar Network. It was co-chaired by
former President Jimmy Carter and former Secretary of State James Baker.
3

Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-4, Page 4 of 9

recommendation:
State and local jurisdictions should prohibit a person from handling
absentee ballots other than the voter, an acknowledged family member, the
U.S. Postal Service or other legitimate shipper, or election officials. The
practice in some states of allowing candidates or party workers to pick up
and deliver absentee ballots should be eliminated.
Id. at 47 (Recommendation 5.2.1). Arizona’s restrictions hew closely to the
Commission’s recommendation. H.B. 2023 provides that “A person who
knowingly collects voted or unvoted early ballots from another person is guilty of a
class 6 felony.” Ariz. Rev. Stat. Ann. § 16-1005(H) (codifying H.B. 2023).
Consistent with the Commission’s recommendation, the law does not apply to
three classes of persons: (1) “[a]n election official,” (2) “a United States postal
service worker or any other person who is allowed by law to transmit United States
mail,” and (3) “[a] family member, household member or caregiver of the voter.”
Id. § 16-1005(H)–(I)(1). I don’t see how Arizona can be said to have violated
constitutional or statutory norms when it follows bipartisan recommendations for
election reform in an area well understood to be fraught with the risk of voter
fraud. Nothing could be more damaging to confidence in our elections than fraud
at the ballot box. See Liptak, supra (describing a study by a political scientist at
MIT finding that election officials rejected 800,000 absentee ballots in the 2008
presidential election; “That suggests an overall failure rate of as much as 21
4

Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-4, Page 5 of 9

percent.”).
II
Moreover, the Arizona provision is substantially similar to the laws in effect
in other states. In Indiana, for example, it is a felony for anyone to collect a voter’s
absentee ballot, with exceptions for members of the voter’s household, the voter’s
designated attorney in fact, certain election officials, and mail carriers. Ind. Code
§ 3-14-2-16(4). Connecticut also restricts ballot collection, permitting only the
voter, a designee of an ill or disabled voter, or the voter’s immediate family
members to mail or return an absentee ballot. Conn. Gen. Stat. § 9-140b(a). New
Mexico likewise permits only the voter, a member of the voter’s immediate family,
or the voter’s caregiver to mail or return an absentee ballot. N.M. Stat. Ann. § 1-610.1. At least seven other states (Georgia, Missouri, Nevada, North Carolina,
Oklahoma, Ohio, and Texas) similarly restrict who can personally deliver an
absentee ballot to a voting location. Ga. Code Ann. § 21-2-385(a) (limiting who
may personally deliver an absentee ballot to designees of ill or disabled voters or
family members); Mo. Rev. Stat. § 115.291(2) (restricting who can personally
deliver an absentee ballot); Nev. Rev. Stat. § 293.330(4) (making it a felony for
anyone other than the voter or the voter’s family member to return an absentee
ballot); N.C. Gen. Stat. § 163-231(b)(1) (allowing only family members or
5

Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-4, Page 6 of 9

guardians to personally deliver an absentee ballot); Okla. Stat. Tit. 26, § 14-108(C)
(voter delivering a ballot must provide proof of identity); Ohio Rev. Code Ann.
§ 3509.05(A) (limiting who may personally deliver an absent voter’s ballot); Tex.
Elec. Code Ann. § 86.006(a) (permitting only the voter to personally deliver the
ballot).2
Other states are somewhat less restrictive than Arizona because they permit
a broader range of people to collect early ballots from voters but restrict how many
ballots any one person can collect and return. Colorado forbids anyone from
collecting more than ten ballots. Colo. Rev. Stat. § 1-7.5-107(4)(b); cf. Ga. Code
Ann. § 21-2-385(b) (prohibiting any person from assisting more than ten
physically disabled or illiterate electors in preparing their ballot). North Dakota
prohibits anyone from collecting more than four ballots, N.D. Cent. Code § 16.107-08(1); New Jersey, N.J. Stat. Ann. § 19:63-4(a), and Minnesota, Minn. Stat.
Ann. § 203B.08 sbd. 1, three; Arkansas, Ark. Code Ann. § 7-5-403, Nebraska,
2

Moreover, at least two states had similar provisions on the books until
recently. California formerly limited who could return mail ballots to the voter’s
family or those living in the same household. Cal. Elec. Code § 3017. It only
amended its law earlier this year. 2016 Cal. Legis. Serv. Ch. 820. Illinois also
used to make it a felony for anyone but the voter, his or her family, or certain
licenced delivery companies to mail or deliver an absentee ballot. 10 Ill. Comp.
Stat. 5/19-6 (1996); 10 Ill. Comp. Stat. 5/29-20(4). Illinois amended that provision
in 2015 to let voters authorize others to mail or deliver their ballots. 10 Ill. Comp.
Stat. 5/19-6 (2015).
6

Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-4, Page 7 of 9

Neb. Rev. Stat. § 32-943(2), and West Virginia, W. Va. Code § 3-3-5(k), two.
South Dakota prohibits anyone from collecting more than one ballot without
notifying “the person in charge of the election of all voters for whom he is a
messenger.” S.D. Codified Laws § 12-19-2.2.
Still other states have adopted slightly different restrictions on who may
collect early ballots. California and Maine, for example, make it illegal to collect
an absentee ballot for compensation. 2016 Cal. Legis. Serv. Ch. 820 (amending
California Election Code § 3017 to enable anyone to collect an early ballot
provided they receive no compensation); 21-A Me. Rev. Stat. Ann. § 791(2)(A)
(making it a crime to receive compensation for collecting absentee ballots); see
also Fla. Stat. § 104.0616(2) (making it a misdemeanor to receive compensation
for collecting more than two vote-by-mail ballots); N.D. Cent. Code § 16.1-0708(1) (prohibiting a person to receive compensation for acting as an agent for an
elector); Tex. Elec. Code Ann. § 86.0052 (criminalizing compensation schemes
based on the number of ballots collected for mailing).
Some of the laws are stated as a restriction on how the early voter may
return a ballot. In those states, the voter risks having his vote disqualified. See,
e.g., Wrinn v. Dunleavy, 440 A.2d 261, 272 (Conn. 1982) (disqualifying ballots
and ordering a new primary election when an unauthorized individual mailed
7

Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-4, Page 8 of 9

absentee ballots). In other states, as in Arizona, the statute penalizes the person
collecting the ballot. See Ind. Code § 3-14-2-16 (making it a felony knowingly to
receive a ballot from a voter); Nev. Rev. Stat. § 293.330(4) (making it a felony for
unauthorized persons to return an absentee ballot); Tex. Elec. Code Ann. § 86.006
(making it a misdemeanor for an unauthorized person to possess between one and
twenty ballots and a felony to possess more than twenty); see also Murphy v. State,
837 N.E.2d 591, 594–96 (Ind. Ct. App. 2005) (affirming a denial of a motion to
dismiss a charge for unauthorized receipt of a ballot from an absentee voter);
People v. Deganutti, 810 N.E.2d 191, 198 (Ill. App. Ct. 2004) (affirming
conviction for absentee ballot violation); see also Ga. Code Ann. § 21-2-385(b)
(providing for penalties up to ten years and a fine of $100,000 for anyone assisting
more than ten physically disabled or illiterate electors). In those states, the ballot,
even if collected improperly, may be valid. See In re Election of Member of Rock
Hill Bd. of Educ., 669 N.E.2d 1116, 1122–23 (Ohio 1996) (holding that a ballot
will not be disqualified for technical error).
III
“[T]he right to vote is the right to participate in an electoral process that is
necessarily structured to maintain the integrity of the democratic system.” Burdick
v. Takushi, 504 U.S. 428, 441 (1992). H.B. 2023 is well within the range of
8

Case: 16-16698, 11/04/2016, ID: 10186580, DktEntry: 70-4, Page 9 of 9

regulations that other states have enacted. I see no infirmity, constitutional or
statutory, in Arizona’s efforts to prevent the potential for fraud in the collection of
early ballots. I respectfully dissent.

9