Feldman et al v. Arizona Secretary of State's Office et al

Filing 204

ORDER that the Joint Motion to Strike Portions of Plaintiffs' ReplyMemorandum and Reply Exhibits filed by Defendants and the ARP, 167 , isDENIED. IT IS FURTHER ORDERED that Plaintiffs Motion for Preliminary Injunction of H.B. 2023, 84 , is DENIED. Signed by Judge Douglas L. Rayes on 9/23/16.(CLB)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Leslie Feldman, et al., Plaintiffs, 10 11 Arizona Secretary of State's Office, et al., 13 ORDER v. 12 No. CV-16-01065-PHX-DLR Defendants. 14 15 16 Plaintiffs are Leslie Feldman, Luz Magallanes, Mercedez Hymes, Julio Morera, 17 and Cleo Ovalle, Democrats and registered voters in Maricopa County, Arizona; Peterson 18 Zah, former Chairman and First President of the Navajo Nation, and a registered voter in 19 Apache County, Arizona; the Democratic National Committee; the Democratic Senatorial 20 Campaign Committee; the Arizona Democratic Party (ADP); Kirkpatrick for U.S. Senate, 21 a committee supporting the election of Democratic United States Representative Ann 22 Kirkpatrick to the United States Senate; and Hillary for America, a committee supporting 23 the election of Democratic candidate Hillary Clinton as President of the United States. 24 Plaintiff-Intervenor is Bernie 2016, Inc., a committee that supported the election of 25 former Democratic candidate Bernie Sanders as President of the United States. The 26 Court will refer to these parties collectively as “Plaintiffs.” 27 Defendants are the Arizona Secretary of State’s Office; Arizona Secretary of State 28 Michele Reagan, in her official capacity; the Maricopa County Board of Supervisors; 1 Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and Steve Gallardo, 2 members of the Maricopa County Board of Supervisors, in their official capacities; the 3 Maricopa County Recorder and Elections Department; Maricopa County Recorder Helen 4 Purcell, in her official capacity; Maricopa County Elections Director Karen Osborne, in 5 her official capacity; and Arizona Attorney General Mark Brnovich, in his official 6 capacity. Defendant-Intervenor is the Arizona Republican Party (ARP).1 7 At issue is Plaintiff’s Motion for Preliminary Injunction of H.B. 2023. (Doc. 84.) 8 Also before the Court is the Motion to Strike Portions of Plaintiffs’ Reply Memorandum 9 and Reply Exhibits filed jointly by Defendants and the ARP. (Doc. 167.) The motions 10 are fully briefed, and the Court heard oral argument on August 3, 2016. 11 following reasons, both motions are denied. 12 For the BACKGROUND 13 In addition to voting at polling places on Election Day, Arizona permits both in- 14 person and absentee early voting during the 27 days before an election. A.R.S. § 16-541. 15 For those who prefer to vote in person, all Arizona counties operate at least one on-site 16 early voting location. (Doc. 153-1 at 9, ¶ 15.) Arizonans may also vote early by mail 17 either by requesting an early ballot on an election-by-election basis or by joining the 18 Permanent Early Voting List (PEVL). A.R.S. §§ 16-542, 16-544. Permanent early 19 voters automatically receive early ballots for every election by mail no later than the first 20 day of the early voting period. To be counted, an early ballot must be received by the 21 county recorder by 7:00 pm on Election Day. A.R.S. § 16-548. Voters may return their 22 early ballot by mail at no cost, but they must mail it early enough to ensure that it is 23 received by this deadline. Additionally, some counties provide special drop boxes for 24 early ballots, and voters in all counties may return their ballots in person at any polling 25 place without waiting in line. (Doc. 153-1 at 10, ¶¶ 16-17.) 26 In 2016, Arizona enacted H.B. 2023, now codified at A.R.S. § 16-1005(H)-(I), 27 1 28 Arizona lawmakers Debbie Lesko and Tony Rivero, Phoenix City Councilman Bill Gates, and Scottsdale City Councilwoman Suzanne Klapp also intervened as Defendants, but did not participate in the instant motion. (Doc. 151.) -2- 1 2 which limits who may possess another’s early ballot. H.B. 2023 provides: 4 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. 5 I. Subsection H of this section does not apply to: 6 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. 3 7 8 9 10 11 12 13 14 15 16 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 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. 17 A.R.S. § 16-1005(H)-(I). Subsequently, Plaintiffs brought this lawsuit challenging H.B. 18 2023 under the Voting Rights Act (VRA) of 1965 and the First and Fourteenth 19 Amendments to the United States Constitution. (Doc. 12; Doc. 53.) Specifically, they 20 argue that H.B. 2023 violates § 2 of the VRA because it disparately burdens the electoral 21 opportunities of Hispanic, Native American, and African American voters as compared to 22 white voters. (Doc. 85 at 12-15.) They also argue that H.B. 2023 violates the First and 23 Fourteenth Amendments by unjustifiably burdening voting, generally, and the 24 associational rights of organizations that collect ballots as part of their get-out-the-vote 25 (GOTV) efforts. (Id. at 15-18.) Finally, Plaintiffs argue that H.B. 2023 violates the First 26 and Fourteenth Amendments under a “partisan fencing” theory because the law allegedly 27 was intended to suppress Democratic voters. (Id. at 18-20.) Plaintiffs now move to 28 preliminarily enjoin Arizona from enforcing the law pending the outcome of this -3- 1 litigation. (Doc. 84.) 2 3 THRESHOLD ISSUES I. Standing 4 As a threshold matter, the ARP argues that Plaintiffs lack standing to challenge 5 H.B. 2023 because “no individual Plaintiff or member of an associational Plaintiff asserts 6 any reliance on ballot collection to vote.” (Doc. 152 at 2, n.1.) Standing derives from 7 Article III of the United States Constitution, which limits federal courts to resolving 8 “Cases” and “Controversies.” To have standing, a plaintiff “must have suffered or be 9 imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly 10 traceable to the challenged action of the defendant and likely to be redressed by a 11 favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., --- 12 U.S. ---, 134 S. Ct. 1377, 1386 (2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 13 555, 560-61 (1992)). Only one plaintiff needs to have standing when only injunctive 14 relief is sought. Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 15 2007), aff'd, 553 U.S. 181, 189 n.7 (2008). 16 The ADP alleges that collecting early ballots has been an integral part of its 17 GOTV strategy since at least 2002 and that, as a result of H.B. 2023, it “will have to 18 devote resources that it otherwise would have spent educating voters about its candidates 19 and issues, to assisting its voters in overcoming the barriers the challenged voting laws, 20 practices, and procedures impose[.]” (Doc. 12, ¶ 28; Doc. 157, ¶¶ 6-9.) Additionally, the 21 ADP alleges that H.B. 2023 will reduce the likelihood that its voters will timely return 22 their ballots, thereby reducing the likelihood that the ADP will be successful in electing 23 Democratic candidates. (Doc. 12, ¶ 28; Doc. 157, ¶ 5.) These allegations are sufficient 24 to establish a concrete and particularized injury in fact that is fairly traceable to H.B. 25 2023 and likely to be redressed by a favorable ruling on Plaintiffs’ preliminary injunction 26 motion. See Crawford, 472 F.3d at 951 (“Thus the new law injures the Democratic Party 27 by compelling the party to devote resources to getting to the polls those of its supporters 28 who would otherwise be discouraged by the new law from bothering to vote.”); One -4- 1 Wisconsin Inst., Inc. v. Nichol, --- F. Supp. 3d ---, No. 15-CV-324-JDP, 2016 WL 2 2757454, at *6 (W.D. Wis. May 12, 2016) (finding expenditure of resources for 3 educating voters about how to comply with new state voter registration requirements 4 sufficient to establish standing). Because the ADP has standing to challenge the validity 5 of H.B. 2023, it is unnecessary to assess whether the other Plaintiffs have standing. 6 II. Motion to Strike 7 Defendants and the ARP have moved to strike portions of Plaintiffs’ reply 8 memorandum and reply exhibits. (Doc. 167.) Specifically, they have moved to strike: 9 (1) portions of the rebuttal report of Plaintiffs’ expert Dr. Allan Lichtman; (2) 10 declarations from Sheila Healy, Steven Begay, Ernesto Teran, and Carmen Arias; (3) the 11 Department of Justice (DOJ) preclearance file for S.B. 1412, an early effort by Arizona to 12 regulate ballot collection; and (4) those portions of Plaintiffs’ reply memorandum that 13 rely on the offending exhibits. (Id. at 2.) Having reviewed the objected-to portions of 14 Dr. Lichtman’s rebuttal report, the Court finds that they respond to arguments raised by 15 the ARP’s expert witnesses. Likewise, the additional declarations respond to the ARP’s 16 standing arguments. Finally, Plaintiffs have shown good cause for the delayed disclosure 17 of the DOJ preclearance file. Despite requesting a copy of the file through a Freedom of 18 Information Act (FOIA) request, Plaintiffs did not receive a readable version until the day 19 before the response briefs were due. Although Defendants and the ARP fault Plaintiffs 20 for not disclosing the file at that time, they fail to explain how they have been prejudiced 21 by the delay. Neither Defendants nor the ARP articulate what they would or could have 22 done differently had they received the DOJ file the day before their response brief was 23 due. Moreover, oral argument provided Defendants and the ARP with an opportunity to 24 respond to this new evidence. Lastly, the Court must assess the likelihood that Plaintiffs 25 with succeed on the merits of their claims. It would disserve that end for the Court to 26 blind itself to evidence that eventually would be presented in a summary judgment 27 motion or at trial. For these reasons, the motion to strike is denied. 28 -5- 1 MOTION FOR PRELIMINARY INJUNCTION 2 “A preliminary injunction is an extraordinary remedy never awarded as of right.” 3 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a 4 preliminary injunction must establish that he is likely to succeed on the merits, that he is 5 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 6 equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. 7 I. Likelihood of Success on the Merits 8 A. Section 2 of the VRA 9 Section 2 prohibits states from imposing any voting qualification, prerequisite, 10 standard, practice, or procedure that “results in a denial or abridgement of the right of any 11 citizen of the United States to vote on account of race or color[.]” 52 U.S.C. § 10301(a). 12 “A violation . . . is established if, based on the totality of circumstances, it is shown that 13 the political processes leading to nomination or election in the State or political 14 subdivision are not equally open to participation” by racial minorities, in that they “have 15 less opportunity than other members of the electorate to participate in the political 16 process and to elect representatives of their choice.” 52 U.S.C. § 10301(b). 17 18 19 20 21 22 23 24 25 26 27 28 Although proving a violation of § 2 does not require a showing of discriminatory intent, only discriminatory results, proof of a causal connection between the challenged voting practice and a prohibited result is crucial. Said otherwise, a § 2 challenge based purely on a showing of some relevant statistical disparity between minorities and whites, without any evidence that the challenged voting qualification causes that disparity, will be rejected. Gonzales v. Arizona, 677 F.3d 383, 405 (9th Cir. 2012) (internal quotations and citations omitted). In Thornburg v. Gingles, the Supreme Court cited a list of non-exhaustive factors that courts should consider when determining whether, under the totality of the circumstances, a challenged voting practice interacts with social and historical conditions to cause a disparity between the electoral opportunities of minority and white voters.2 2 These factors are sometimes called the “Senate Factors” because they derive from the Senate Report accompanying the 1982 amendments to the VRA. -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 478 U.S. 30 (1986). These 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 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 36-37 (quoting S. Rep. No. 97-417, at 28-29 (1982)). Courts also may consider “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. “[T]here is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.” Id. at 45. Accordingly, a § 2 claim has two essential elements: (1) the challenged voting practice must impose a disparate burden on the electoral opportunities of minority as compared to white voters, 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 and citations omitted). “The first part of this two-prong framework inquires about the nature of the burden imposed and -7- 1 whether it creates a disparate effect[.]” Veasey v. Abbott, --- F.3d ---, No. 14-41127, 2 2016 WL 3923868, at *17 (5th Cir. July 20, 2016). Drawing on the Supreme Court’s 3 guidance in Gingles, “[t]he second part . . . provides the requisite causal link between the 4 burden on voting rights and the fact that this burden affects minorities disparately 5 because it interacts with social and historical conditions that have produced 6 discrimination against minorities currently, in the past, or both.” Id. Stated otherwise, 7 “the second step asks not just whether social and historical conditions ‘result in’ a 8 disparate impact, but whether the challenged voting standard or practice causes the 9 discriminatory impact as it interacts with social and historical conditions.” Ohio 10 Democratic Party v. Husted, --- F.3d ---, No. 16-3561, 2016 WL 4437605, at *14 (6th 11 Cir. Aug. 23, 2016) (alterations omitted); see Gingles, 478 U.S. at 47 (“The essence of a 12 § 2 claim is that a certain electoral law, practice, or structure interacts with social and 13 historical conditions to cause an inequality in the opportunities enjoyed by [minority] and 14 white voters to elect their preferred representatives.”) The court need not reach the 15 Gingles factors and totality-of-the-circumstances inquiry, however, unless the plaintiff 16 proves the existence of a relevant disparity between minority and white voters at step 17 one. See Ohio Democratic Party, 2016 WL 4437605, at *13 (“If this first element is met, 18 the second step comes into play, triggering consideration of the ‘totality of the 19 circumstances,’ potentially informed by the ‘Senate Factors’ discussed in ‘Gingles.’”). 20 Based on the current record, the Court finds Plaintiffs are not likely to succeed on 21 their § 2 claim because there is insufficient evidence of a statistically relevant disparity 22 between minority as compared to white voters. H.B. 2023 is facially neutral. It applies 23 to all Arizonans regardless of race or ethnicity. Nonetheless, Plaintiffs argue that H.B. 24 2023 disparately burdens Hispanic, Native American, and African American voters as 25 compared to white voters because these groups disproportionately rely on others to 26 collect and return their early ballots. Plaintiffs, however, provide no quantitative or 27 statistical evidence comparing the proportion of minority versus white voters who rely on 28 others to collect their early ballots. To the contrary, Sheila Healy, Executive Director of -8- 1 the ADP, testified that she has “no way of knowing if and how many voters could be 2 impacted by [the ADP’s] inability to offer to mail their ballot for them.” (Doc. 153-1 at 3 79-80.) The Court is aware of no case—and Plaintiffs cite none—in which a § 2 4 violation has been found without quantitative evidence measuring the alleged disparity 5 between minority and white voters. 6 Plaintiffs argue quantitative evidence is not needed because no case has expressly 7 held that such evidence is necessary to prove a § 2 violation. (Doc. 156 at 9.) The 8 standards developed for analyzing § 2 cases, however, strongly suggest that proof of a 9 relevant statistical disparity is necessary at step one, even though it is not alone sufficient 10 to prove a § 2 violation because of the causation requirement at step two. See Gonzales, 11 677 F.3d at 405; see also Veasey, 2016 WL 3923868, at *17 (noting that “courts regularly 12 utilize statistical analyses to discern whether a law has a discriminatory impact”). 13 Further, in other contexts courts have “recognized the necessity of statistical evidence in 14 disparate impact cases.” Budnick v. Town of Carefree, 518 F.3d 1109, 1118 (9th Cir. 15 2008) (Fair Housing Act); Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003) 16 (Age Discrimination in Employment Act); Cooper v. S. Co., 390 F.3d 695, 716 (11th Cir. 17 2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006) 18 (Title VII); Rollins v. Alabama Cmty. Coll. Sys., No. 2:09-CV-636-WHA, 2010 WL 19 4269133, at *9 (M.D. Ala. Oct. 25, 2010) (Equal Pay Act); Davis v. City of Panama City, 20 Fla., 510 F. Supp. 2d 671, 689 (N.D. Fla. 2007) (Title VII and 42 U.S.C. § 1983). 21 Plaintiffs offer no compelling reason why the method by which the Court determines 22 whether a relevant disparity exists should change simply because this case arises under 23 the VRA. 24 Disparate impact analysis necessarily is a comparative exercise. To determine 25 whether a voting practice disparately impacts minorities, the Court must know 26 approximately: (1) how many voters will be impacted by the law, and (2) the racial and 27 ethnic composition of those voters. Without this information, the Court cannot compare 28 the impact of the law on different demographic populations, nor can it determine whether -9- 1 the differences, if any, are statistically relevant.3 2 Assuming, arguendo, that a § 2 violation could be proved using non-quantitative 3 evidence, Plaintiffs’ evidence is not compelling. 4 Plaintiffs offer anecdotal observations from Arizona Democratic lawmakers and 5 representatives of organizations that have collected and returned ballots in past elections. 6 These non-expert declarants claim, based on their experiences, that Hispanic, Native 7 American, and African-American communities rely most on ballot collection. (Doc. 86, 8 ¶¶ 5, 18; Doc. 90, ¶ 8; Doc. 91, ¶ 9; Doc. 92, ¶¶ 3-4; Doc. 93, ¶¶ 2-4, 10; Doc. 95, ¶¶ 4, 8- 9 9; Doc. 96, ¶¶ 3, 14-15; Doc. 97, ¶¶ 3, 10, 20; Doc. 98, ¶¶ 3, 11, 14; Doc. 99, ¶¶ 3, 10; 10 Doc. 100, ¶¶ 4, 20, 23; Doc. 127-1, ¶¶ 3-4; Doc. 158, ¶¶ 3-5.) But these declarants 11 predominately are Democratic partisans and members of organizations that admittedly 12 target their GOTV efforts at minority communities. The Court has no way of knowing 13 whether the experiences of these declarants are attributable to their selective targeting or 14 to statewide ballot collection trends.4 15 16 17 18 19 20 21 22 23 24 25 26 27 Notably, many types of voters can benefit from ballot collection. According to Healy: There are many barriers that impede voters from being able to return a ballot in time. For example, some voters—particularly those in underprivileged and rural areas—lack access to home delivery and must drive to a post office to receive or send mail. In underprivileged neighborhoods, it is common for residents to receive incoming mail in a centralized location in the community but to lack access to an outgoing 3 Plaintiffs assert that H.B. 2023’s impact cannot be quantitatively measured because Arizona does not collect the necessary data, but they do not explain why Arizona bears that burden. (Doc. 156 at 9.) Nor may Plaintiffs avoid their burden of proof simply because surveying the relevant population might be difficult. See Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 Harv. C.R.-C.L. L. Rev. 439, 476 (2015) (“It can be difficult to document the racial composition of those who use a voting opportunity . . . , given that election and other public records often do not include racial or ethnic data. There is no getting around this problem. But given that § 2 forbids the denial or abridgement of the vote on account of race, it is reasonable that plaintiffs be required to make a threshold showing they are disproportionately burdened by the challenged practice, in the sense that it eliminates an opportunity they are more likely to use or imposes a requirement they are less likely to satisfy.”). 4 28 In lieu of quantitative evidence, Although there is some evidence that Democratic-leaning organizations use ballot collection more effectively, it is undisputed that “groups from all ideological backgrounds use ballot collection.” (Doc. 86, ¶ 18.) - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 mailbox, which makes returning early ballots a challenge. Many voters prefer to wait until Election Day to decide who to vote for, particularly in elections of national importance like the presidential election. Others lack the physical mobility to put their ballot in the mailbox, and must rely on caretakers, family, friends, or volunteers to ensure that their ballot is postmarked in time or taken to the polls. Many voters mistakenly assume that the ballot is timely if it is postmarked by Election Day rather than actually received. Many of our voters work two or three jobs, take care of a family, and travel to work on public transportation. (Doc. 100, ¶ 21.) Many of these circumstances apply equally to minority and white voters. There is no evidence, for example, that minority voters are more likely to be elderly or homebound, to prefer to wait until Election Day to cast consequential votes, or to forget to mail their ballots. Plaintiffs highlight the challenges faced by voters in rural areas without home mail delivery and reliable transportation, but both minority and white voters live in rural areas. As of 2010, the rural communities of Somerton and San Luis were 95.9% and 98.7% Hispanic or Latino, respectively. (Doc. 101-12 at 2.) Conversely, the rural communities of Colorado City, Fredonia, Quartzite, St. David, Star Valley, and Wickenburg were 99.5%, 89.1%, 92.5%, 92.1%, 91.4%, and 90.5% white, respectively. (Doc. 152-14 at 2-7.) Although Plaintiffs provide evidence that Somerton and San Luis residents lack home mail delivery, (Doc. 95, ¶¶ 15, 17), they offer no comparable evidence for rural white communities. Nor do they provide evidence of the number of voters in communities like Somerton and San Luis who choose to vote early by mail, despite the lack of mail service.5 Plaintiffs also cite legislative testimony from the debates on H.B. 2023, but the testimony provides no new information. Several Democratic lawmakers who spoke out against H.B. 2023 during the legislative debates also submitted declarations in support of Plaintiffs’ motion, and the remaining legislative testimony is largely duplicative. For example, many lawmakers expressed concerns that H.B. 2023 would impact rural communities, working families, and the elderly. (Doc. 101-9 at 6-7, 13-14; Doc. 101-10 at 29-30; Doc. 101-11 at 17-18; Doc. 101-12 at 7, 9-11.) As noted, however, there are 27 28 5 The Court also notes that, to the extent some voters rely on caretakers or family members to deliver their early ballots, H.B. 2023 has no impact. - 11 - 1 rural communities that are predominately minority and rural communities that are 2 predominately white, there is no evidence that minorities are disproportionately elderly, 3 and both white and minority voters can have multiple or time consuming jobs. 4 Next, Plaintiffs argue that certain declarations submitted by the ARP effectively 5 concede that minority voters disproportionately rely on ballot collection. 6 however, take portions of these declarations out of context. For example, they cite to the 7 declaration of Kevin Dang, President of the Vietnamese Community of Arizona, who 8 stated that minority groups are “especially vulnerable to manipulation by groups who 9 harvest ballots. Plaintiffs, Those who want to manipulate the system can take advantage of 10 minorities like the Vietnamese who do not speak English and who do not understand the 11 process.” 12 Chapter of the Arizona Latino Republican Association, declared that “[m]any people in 13 the Latino population, particularly the elderly, are being taken advantage of by groups 14 that collect ballots and misrepresent themselves as government or election officials. 15 Many of the people that these groups target do not speak English and are particularly 16 vulnerable to such groups.” (Doc. 152-7, ¶¶ 3, 5.) These are not admissions that 17 minority voters disproportionately rely on ballot collection. Instead, these declarations 18 reflect the lay opinions of two individuals who believe ballot collection creates an 19 opportunity for fraud, and that minorities are targeted by ballot collectors with nefarious 20 purposes because they are less educated about the process and often do not speak or 21 understand English well. (Doc. 152-12, ¶¶ 3, 8.) Likewise, Sergio Arellano, President of the Tucson 22 Lastly, Plaintiffs cite portions of the DOJ preclearance file for S.B. 1412. 23 Assuming that the DOJ preclearance file is admissible for purposes of the instant 24 motion,6 it does not prove a relevant disparity between minority and white voters. The 25 DOJ file contains what appear to be summaries of telephone conversations between a 26 DOJ attorney and various persons concerning S.B. 1412. For example, an unknown 27 6 28 Defendants and the ARP object to the admissibility of this evidence on the basis that it contains multiple levels of hearsay, lacks foundation, and has not been authenticated. - 12 - 1 Yuma County Recorder’s Office employee reportedly said that, in her experience, Yuma 2 County: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 does not experience a great deal of traffic from persons returning large numbers of vote by mail ballots by mail in groups of ten or more. That could be, of course, because people just put the ballots in the mailbox and no one notices. The exception to that is the City of Marin, where people do tend to bring up vote by mail ballots in groups. It is a smaller city of about 15,000 persons, but it is near the border with Mexico and almost everyone is Hispanic. (Doc. 161-1 at 104.) Notably absent is similar information about ballot collection in Arizona’s other counties. That most Yuma County residents relying on ballot collection might be Hispanic does not mean that most Arizonans relying on ballot collection are minorities. Moreover, the employee discussed only persons returning ten or more ballots at once and said nothing about the delivery of smaller quantities of early ballots.7 Additionally, then-Arizona Elections Director Amy Bjelland reportedly said that “S.B. 1412 was targeted at voting practices in predominately Hispanic areas in the southern portion of the state near the Arizona border,” and Senator Don Shooter, the bill’s sponsor, was “mainly concerned about practices in San Luis, which is a border town in Yuma County[.]” (Id. at 111.) Plaintiffs isolate this quote, but ignore the context in which it was made. Bjelland elaborated that: [t]he event that spurred [S.B. 1412] involved a dispute that arose in San Luis, a small city in Yuma County located in what is called “south county,” on the border with Mexico. A large majority of the population of the city [is] Hispanic[]. Two Hispanic women who had previously worked on campaigns together had a bitter falling out. One of the women wrote a letter to a local council member named David Luna, in which she accused the other woman of engaging in voter fraud, and admitted doing so herself when they worked together. Luna forwarded the complaint . . . to the Secretary of State’s office, who forwarded it on to the FBI. Both the FBI and the Secretary of State’s office looked into the matter and found no evidence of wrongdoing. . . . However, the allegations were picked up by Tea Partiers and Republican candidates in the area, and the issue received a lot of press attention. 26 27 28 7 Evidence shows that not all ballot collectors deliver large quantities of ballots. (See Doc. 88, ¶ 8 (three to four ballots collected and delivered).) - 13 - 1 2 3 4 5 (Id.) The DOJ summary then reports: [Bjelland] does not know how widespread the problem is, but in her opinion “it is part of life in San Luis of how things have been run for years.” She thinks the problem may result “from the different way that Mexicans do their elections.” She says that there is corruption in the government and the voting process in Mexico, and that people who live close to the border are more impacted by that. 6 (Id. at 111-12.) In context, this report describes the “practice” targeted by S.B. 1412 not 7 as ballot collection, generally, but as voter fraud perpetrated through ballot collection, 8 which Bjelland believed was more prevalent along the border because of perceived 9 “corruption in the government and the voting process in Mexico,” and the fact that 10 “people who live close to the border are more impacted by that.” (Id.) 11 In sum, Plaintiffs are not likely to succeed on their § 2 claim because they have 12 provided insufficient evidence of a cognizable disparity between minority and white 13 voters. The current record shows that certain civic organizations collect ballots as part of 14 their GOTV efforts, that some selectively target minority communities, and that some 15 minority voters give their ballots to collectors. But there is no evidence quantifying the 16 number of voters who rely on ballot collection or comparing the proportion of those 17 voters that are minorities to the proportion that are white. Because Plaintiffs are not 18 likely to carry their burden at step one, it is unnecessary to reach the second step 19 causation inquiry regarding H.B. 2023’s interaction with social and historical conditions. 20 See Ohio Democratic Party, 2016 WL 4437605, at *14 (concluding that the second step 21 causal inquiry was immaterial because plaintiffs failed to meet their burden of proving a 22 disparate impact at step one); Frank v. Walker, 768 F.3d 744, 755 (7th Cir. 2014) 23 (resolving § 2 vote denial claim at step one). 24 B. First and Fourteenth Amendments 25 Although the Constitution empowers states to regulate the times, places, and 26 manner of elections, U.S. Const. art. I, § 4, cl. 1, this power is not absolute. It is “subject 27 to the limitation that [it] may not be exercised in a way that violates other . . . provisions 28 of the Constitution.” Williams v. Rhodes, 393 U.S. 23, 29 (1968); see Washington State - 14 - 1 Grange v. Washington State Republican Party, 552 U.S. 442, 451 (2008). As relevant 2 here, the First and Fourteenth Amendments protect against unjustified burdens on voting 3 and associational rights. See Burdick v. Takushi, 504 U.S. 428, 433-34 (1992); Anderson 4 v. Celebrezze, 460 U.S. 780, 789 (1983). 5 Not all election regulations, however, raise constitutional concerns. “[A]s a 6 practical matter, there must be substantial regulation of elections if they are to be fair and 7 honest and if some order, rather than chaos, is to accompany the democratic process.” 8 Storer v. Brown, 415 U.S. 724, 730 (1974). 9 “invariably impose some burden upon individual voters.” Burdick, 504 U.S. at 433. 10 Thus, when an election law is challenged a court must weigh the nature and magnitude of 11 the burden imposed by the law against state’s interests in and justifications for it. See 12 Nader v. Brewer, 531 F.3d 1028, 1034 (9th Cir. 2008). This framework is commonly 13 referred to as the Anderson-Burdick test, named after the two Supreme Court cases from 14 which it derives. Moreover, all elections regulations 15 When applying Anderson-Burdick, the court considers the state’s election regime 16 as a whole. See Ohio Democratic Party, 2016 WL 4437605, at *5. “[T]he severity of the 17 burden the election law imposes on the plaintiff’s rights dictates the level of scrutiny 18 applied by the court.” Nader, 531 F.3d at 1034. A law that severely burdens the right to 19 vote is subject to strict scrutiny, meaning it must be narrowly tailored to serve a 20 compelling state interest. Id. at 1035. On the other hand, a state’s important regulatory 21 interests are generally sufficient to justify laws that impose lesser burdens. 22 Washington State Grange, 552 U.S. at 452; Nader v. Cronin, 620 F.3d 1214, 1217 (9th 23 Cir. 2010). Laws that do not significantly increase the usual burdens of voting do not 24 raise substantial constitutional concerns. See Crawford, 553 U.S. at 198. See 25 Plaintiffs bring a facial challenge to H.B. 2023. “Facial challenges are disfavored 26 for several reasons.” Washington State Grange, 552 U.S. at 450. First, “[c]laims of 27 facial invalidity often rest on speculation. As a consequence, they raise the risk of 28 premature interpretation of statutes on the basis of factually barebones records.” Id. - 15 - 1 (internal quotations and citation omitted). 2 fundamental principle of judicial restraint that courts should neither anticipate a question 3 of constitutional law in advance of the necessity of deciding it nor formulate a rule of 4 constitutional law broader than is required by the precise facts to which it is applied.” Id. 5 (internal quotations and citations omitted). Lastly, “facial challenges threaten to short 6 circuit the democratic process by preventing laws embodying the will of the people from 7 being implemented in a manner consistent with the Constitution.” Id. at 451. Thus, 8 Plaintiffs “bear a heavy burden in demonstrating a substantial likelihood of success[.]” 9 League of Women Voters of Florida v. Browning, 575 F. Supp. 2d 1298, 1314 (S.D. Fla. 10 2008); see also Crawford, 553 U.S. at 200 (“Given the fact that petitioners have 11 advanced a broad attack on the constitutionality of [the election regulation], seeking relief 12 that would invalidate the statute in all its applications, they bear a heavy burden of 13 persuasion.”). 14 Such claims “also run contrary to the i. Voting Rights 15 H.B. 2023 does not significantly increase the usual burdens of voting. It does not 16 eliminate or restrict any method of voting, it merely limits who may possess, and 17 therefore return, a voter’s early ballot. Early voters may return their own ballots, either in 18 person or by mail, or they may entrust their ballots to family members, household 19 members, or caregivers. It is unlawful, however, for a person who does not fall into one 20 of these categories to possess another’s early ballot. Thus, the burden imposed by H.B. 21 2023 is simply the burden of returning an early ballot personally or through a family 22 member, household member, or caregiver. 23 Plaintiffs argue that this burden is more severe for “voters who would otherwise 24 have great difficulty in returning their early ballot in time for it to be counted, such as the 25 voters in rural and Native American communities who do not have mail service[.]” (Doc. 26 85 at 16.) They also highlight the challenges faced by elderly, homebound, and disabled 27 voters, as well as those who work multiple jobs. Arizona’s election regime, however, 28 alleviates many of the burdens H.B. 2023 might impose on the types of voters Plaintiffs - 16 - 1 have described. 2 First, voters who have great difficulty timely returning their early ballots need not 3 vote by mail. These voters may vote in person at polling places on Election Day or at an 4 on-site early voting location during any one of Arizona’s 27 early voting days. In fact, 5 when asked whether the ADP encourages voters in rural areas without reliable 6 transportation or access to secure outgoing mail services to nonetheless sign up for the 7 PEVL, Healy explained: “It depends on the area that they live. For example, on the 8 Navajo Nation where folks do not have reliable transportation or access to a post office or 9 a service to receive mail we do not encourage them to sign up for the [PEVL].” (Doc. 10 152-13 at 4.) Instead, the ADP encourages these voters to vote in person. (Id.) 11 Arizona also accommodates disabled voters and those who work on Election Day. 12 All counties must provide special election boards for voters who cannot travel to a 13 polling location because of an illness or disability. A.R.S. § 16-549. If an ill or disabled 14 voter timely requests an accommodation, the county recorder must arrange for a special 15 election board to deliver a ballot to the voter in person. For working voters, Arizona law 16 requires employers to give an employee time off to vote if the employee is scheduled to 17 work a shift on Election Day that provides fewer than three consecutive hours between 18 either the opening of the polls and the beginning of the shift, or the end of the shift and 19 the closing of the polls. A.R.S. § 16-402. An employer is prohibited from penalizing an 20 employee for exercising this right. If voters nonetheless feel uncomfortable requesting 21 time off, they have a 27-day window to vote in person at an on-site early voting location. 22 Finally, voters may entrust their ballots to family members, household members, or 23 caregivers.8 24 Evidence indicates that many voters who entrust their ballots to collectors do so 25 not out of necessity, but for convenience or because they prefer a trusted volunteer to 26 deliver their ballots. (See, e.g., Doc. 100, ¶ 21.) Voters’ minimization of the value of 27 8 28 Several of Plaintiffs’ declarants erroneously contend that H.B. 2023 will prevent them or others from delivering ballots on behalf of family members, despite the law’s clear language to the contrary. (See Doc. 88, ¶¶ 8, 11; Doc. 89, ¶ 12; Doc. 91, ¶ 10.) - 17 - 1 their votes also plays a role. Plaintiffs submitted a declaration from Randy Parraz, co- 2 founder and former president of Citizens for a Better Arizona (CBA), a non-profit 3 organization that operated from 2011 to 2014 with a special focus on GOTV efforts, who 4 discussed CBA’s ballot collection activities. 5 deposition why voters typically failed to return their early ballot by mail, Parraz testified: 6 One, they didn’t think their vote mattered. Two, [it] was inconvenient. Three, they would forget. Those are some of the main reasons they did it. But I think the primary thing was that they didn’t feel their vote mattered. So whether mail-in ballot or going to show up at the polls, the election didn’t have much meaning to them. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Doc. 90.) When asked during his (Doc. 153-1 at 222.) For these voters, H.B. 2023’s impact results from a matter of preference or choice rather than a state-created obstacle, and therefore is not a substantial burden. Frank, 768 F.3d at 749. Moreover, the Constitution does not demand “recognition and accommodation of such variable personal preferences, even if the preferences are shown to be shared in higher numbers by members of certain identifiable segments of the voting public.” Ohio Democratic Party, 2016 WL 4437605, at *7. Nor does the Constitution prohibit Arizona from regulating the manner in which early ballots may be returned simply because some voters are disengaged and choose not vote unless a third party convinces them to do so and delivers the ballot for them. Plaintiffs also argue that H.B. 2023 will burden voters who forget or are mistaken about the relevant deadlines. For example, Ernesto Teran, a Maricopa County Democrat, stated that he voted by mail in the last two elections. (Doc. 159, ¶ 3.) During the last election, volunteers from the ADP came to his house and asked if he had mailed in his early ballot. (Id., ¶ 4.) He told the volunteers that he “was certain that [he] had done so,” but decided to check again to confirm. (Id.) He then discovered that he had forgotten to mail his ballot it. (Id.) He thought about delivering the ballot himself, but decided instead to entrust it with the ADP volunteers. (Id.) Carmen Arias, another Maricopa County Democrat, stated that she votes by mail and typically is able to mail in her ballot before Election Day. (Doc. 160, ¶¶ 2, 4.) Sometimes, however, she “has forgotten to do so before it’s too late,” and in those situations she has entrusted her ballot to an ADP - 18 - 1 volunteer. (Id., ¶ 4.) The Constitution, however, does not require states to prioritize 2 voter convenience above all other regulatory considerations. Ohio Democratic Party, 3 2016 WL 4437605, at *6 (“It’s as if plaintiffs disregard the Constitution’s clear mandate 4 that the states (and not the courts) establish election protocols, instead reading the 5 document to require all states to maximize voting convenience.”). To the extent H.B. 6 2023 places a greater imperative on remembering relevant election deadlines, it “does not 7 qualify as a substantial burden on the right to vote, or even represent a significant 8 increase over the usual burdens of voting.” Crawford, 553 U.S. at 198. 9 Given the severe burdens Plaintiffs allege H.B. 2023 will place on rural voters 10 without reliable transportation or access to secure outgoing mail, it is telling that they 11 have not produced a single declaration from a voter who fits this profile.9 Such voters 12 might exist, but Plaintiffs have not provided sufficient evidence that these voters (1) 13 choose to vote early by mail despite the difficulties they face; (2) lack family members, 14 household members, or caregivers who can deliver a ballot for them; and (3) cannot avail 15 themselves of the many other voting opportunities and accommodations Arizona 16 provides. It therefore “is not possible to quantify either the magnitude of the burden on 17 this narrow class of voters or the proportion of the burden imposed on them that is fully 18 justified.” Crawford, 553 U.S. at 200. Accordingly, the Court finds that H.B. 2023 19 imposes only minor burdens not significantly greater than those typically associated with 20 voting. 21 Because H.B. 2023 imposes only minimal burdens, Arizona must show only that it 22 serves important regulatory interests. 23 Arizona advances two justifications for H.B. 2023. First, it claims that H.B. 2023 is a 24 prophylactic measure intended to prevent absentee voter fraud by creating a chain of 25 custody for early ballots and minimizing the opportunities for ballot tampering. Second, 26 Arizona argues that H.B. 2023 eliminates the perception of fraud, thereby preserving Washington State Grange, 552 U.S. at 452. 27 9 28 State Senator Martín Quezada stated that he lacks access to a secure mailbox at his personal residence, but he did not claim to have difficulty either voting in person or returning an early mail ballot. (Doc. 97, ¶ 22.) - 19 - 1 public confidence in the integrity of elections. (Doc. 153 at 12-13.) Fraud prevention 2 and preserving public confidence in election integrity are important state regulatory 3 interests. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“Confidence in the integrity of our 4 electoral process is essential to the functioning of our participatory democracy. Voter 5 fraud drives honest citizens out of the democratic process and breeds distrust of our 6 government.”); see also Crawford, 553 U.S. at 195 (“There is no question about the 7 legitimacy or importance of the State’s interest in counting only the votes of eligible 8 voters. . . . While the most effective method of preventing election fraud may well be 9 debatable, the propriety of doing so is perfectly clear.”). Plaintiffs do not argue 10 otherwise. Instead, they argue that H.B. 2023 is unjustified because there is no evidence 11 of verified absentee voter fraud perpetrated by ballot collectors, or of widespread public 12 perception that ballot collection leads to fraud. (Doc. 156 at 23.) 13 Many courts, however, have recognized that absentee voting presents a greater 14 opportunity for fraud. See Crawford, 553 U.S. at 225 (noting that “absentee-ballot fraud . 15 . . is a documented problem in Indiana”); Griffin v. Roupas, 385 F.3d 1128, 1131 (7th 16 Cir. 2004) (“Voting fraud . . . is facilitated by absentee voting.”); Qualkinbush v. Skubisz, 17 826 N.E.2d 1181, 1197 (Ill. App. Ct. 2004) (“It is evident that the integrity of the vote is 18 even more susceptible to influence and manipulation when done by absentee ballot.”). 19 Moreover, Arizona “need not show specific local evidence of fraud in order to justify 20 preventative measures.” Voting for Am., Inc. v. Steen, 732 F.3d 382, 394 (5th Cir. 2013). 21 For example, Crawford upheld Indiana’s voter identification requirement as a measure 22 designed to prevent in-person voter fraud even though “[t]he record contain[ed] no 23 evidence of any such fraud actually occurring in Indiana at any time in its history.” 553 24 U.S. at 195. Similarly, in Munro v. Socialist Workers Party, the Supreme Court upheld a 25 Washington law requiring all minor party candidates for partisan office to receive at least 26 1% of all votes cast during the primary election in order to appear on the general election 27 ballot. 479 U.S. 189 (1986). Washington argued that the law prevented voter confusion 28 from ballot overcrowding by ensuring candidates appearing on the general election ballot - 20 - 1 had sufficient community support. Id. at 194. In upholding the law, the Supreme Court 2 explained: “We have never required a State to make a particularized showing of the 3 existence of voter confusion, ballot overcrowding, or the presence of frivolous candidates 4 prior to the imposition of reasonable restrictions on ballot access.” 5 Rather, “[l]egislatures . . . should be permitted to respond to potential deficiencies in the 6 electoral process with foresight rather than reactively[.]” Id. at 195; see also Lee v. 7 Virginia State Bd. of Elections, -- F. Supp. 3d --, No. 3:15CV357-HEH, 2016 WL 8 2946181, at *26 (E.D. Va. May 19, 2016) (“Outlawing criminal activity before it occurs 9 is not only a wise deterrent, but also sound public policy.”). Id. at 194-95. 10 In sum, Arizona has proffered two important state regulatory interests that are 11 rationally served by H.B. 2023. Though Plaintiffs argue that there are no verified cases 12 of absentee voter fraud perpetrated by ballot collectors in Arizona, the Court must 13 scrutinize Arizona’s justifications less severely because Plaintiffs have not shown H.B. 14 2023 imposes more than minimal burdens on voting. Accordingly, Plaintiffs are not 15 likely to succeed on their Fourteenth Amendment challenge. 16 ii. Associational Rights 17 Plaintiffs also argue that H.B. 2023 burdens the associational rights of groups that 18 encourage and facilitate voting through ballot collection. (Doc. 85 at 16-17.) The 19 Anderson-Burdick framework applies to Plaintiff’s First Amendment claims. Timmons v. 20 Twin Cities Area New Party, 520 U.S. 351, 358 (1997). As the party invoking the First 21 Amendment’s protection, however, Plaintiffs bear the additional, threshold burden of 22 proving that it applies. Voting for Am., 732 F.3d at 388. 23 The First Amendment extends “only to conduct that is inherently expressive.” 24 Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006). 25 Relying on Project Vote v. Blackwell, Plaintiffs argue that ballot collection is expressive 26 activity. 455 F. Supp. 2d 694 (N.D. Ohio 2006). In that case, civic organizations 27 challenged certain Ohio regulations on voter registration that, among other things, made 28 it a felony for someone other than the person who registered the voter or the voter herself - 21 - 1 to submit a voter registration form. Id. at 702, 705-06. The court concluded that 2 “participation in voter registration implicates a number of both expressive and 3 associational rights which are protected by the First Amendment.” Id. at 700. Finding 4 that the challenged Ohio regulation “severely chills participation in the voter registration 5 process,” and served no legitimate state interest, the court concluded that it likely violated 6 the First Amendment rights of those who participate in voter registration drives. Id. at 7 705-06. Plaintiffs argue that there is no principled distinction between returning voter 8 registration forms and returning early ballots. 9 Defendants rely on Vote for America v. Steen, which reached the opposite 10 conclusion. That case involved a challenge to various Texas laws that regulated the 11 receipt and delivery of completed voter registration applications. Vote for Am., 732 F.3d 12 at 385-86. The Fifth Circuit rejected the argument that collecting and delivering voter 13 registration applications were inherently expressive activities protected by the First 14 Amendment. Id. at 392. In doing so, the court agreed that “some voter registration 15 activities involve speech—‘urging’ citizens to register; ‘distributing’ voter registration 16 forms; ‘helping’ voters fill out their forms; and ‘asking’ for information to verify 17 registrations were processed successfully.” Id. at 389. It found, however, that “there is 18 nothing inherently expressive about receiving a person’s completed [voter registration] 19 application and being charged with getting that application to the proper place.” Id. at 20 392 (internal quotation and citation omitted). 21 The Court finds the Fifth Circuit’s analysis more persuasive. Though many 22 GOTV activities involve First Amendment protected activity, there is nothing inherently 23 expressive or communicative about receiving a voter’s completed early ballot and 24 delivering it to the proper place. Thus, Plaintiffs are not likely to succeed on their First 25 Amendment claim because they have not shown that ballot collection is protected First 26 Amendment activity. 27 Assuming, arguendo, that H.B. 2023 implicates protected associational rights, it 28 does not impose severe burdens. Nothing in H.B. 2023 prevents Plaintiffs or other civic - 22 - 1 organizations from encouraging, urging, or reminding people to vote, informing them of 2 relevant election deadlines, helping them fill out early ballots or request special election 3 boards, or arranging transportation to on-site early voting locations, post offices, county 4 recorder’s offices, or polling places. See Vote for Am., 732 F.3d at 393 (noting that voter 5 registration volunteers remained “free to organize and run the registration drive, persuade 6 others to register to vote, distribute registration forms, and assist others in filling them 7 out”); League of Women Voters, 575 F. Supp. 2d at 1322 (“[The challenged law] does not 8 place any restrictions on who is eligible to participate in voter registration drives or what 9 methods or means third-party voter registration organizations may use to solicit new 10 voters and distribute registration applications. 11 administrative aspect of the electoral process—the handling of voter registration 12 applications by third-party voter registration organizations after they have been collected 13 from applications.”). H.B. 2023 merely regulates who may possess, and therefore return, 14 another’s early ballot. In light of the minimal burdens H.B. 2023 imposes on GOTV 15 activities, Arizona’s aforementioned regulatory interests in preventing absentee voter 16 fraud and preserving public confidence in elections are sufficient justifications. 17 Instead, [it] simply regulates an iii. Partisan Fencing 18 Lastly, Plaintiffs argue that H.B. 2023 “was intended to suppress the vote in 19 violation of the First and Fourteenth Amendments, which prohibit discrimination based 20 on partisan affiliation or viewpoint.” (Doc. 85 at 18.) This so-called “partisan fencing” 21 theory derives from Carrington v. Rash, in which the Supreme Court found 22 unconstitutional a Texas law prohibiting any member of the armed forces who moves her 23 home to Texas during the course of military duty from voting. 380 U.S. 89, 95-96 24 (1965). In striking down the law, the Supreme Court explained that “‘[f]encing out’ from 25 the franchise a sector of the population because of the way they may vote is 26 constitutionally impermissible.” Id. at 94. The theory found renewed support decades 27 later in Justice Kennedy’s concurring opinion in Vieth v. Jubelirer, a case in which the 28 Supreme Court held that political gerrymandering claims are nonjusticiable. 541 U.S. - 23 - 1 267 (2004). Writing only for himself, Justice Kennedy wrote “[i]f a court were to find a 2 State did impose burdens and restrictions on groups or persons by reason of their views, 3 there would likely be a First Amendment violation, unless the State shows some 4 compelling interest.” Id. at 315. 5 Since these decisions, however, no special framework for analyzing partisan 6 fencing claims has developed. 7 established in Village of Arlington Heights v. Metropolitan Housing Development 8 Corporation for analyzing claims of invidious racial discrimination. 9 (1977). Under the Arlington Heights framework, the Court first examines whether the 10 challenged law was motivated by an “invidious discriminatory purpose.” Id. at 266. In 11 doing so, the Court considers factors such as (1) whether the law has a disparate impact 12 on a particular group; (2) the historical background and sequence of events leading to 13 enactment; (3) substantive or procedural departures from the normal legislative process; 14 and (4) relevant legislative history. Id. at 266-68. If the Court concludes that the law was 15 intended, at least in part, to discriminate against a particular group, the burden shifts to 16 the state to prove either that the challenged law has no discriminatory effect, or that it 17 would have been enacted even without the discriminatory motive. Id. at 270 n.21. Plaintiffs urge the Court to adopt the framework 429 U.S. 252 18 Recent cases, however, have approached partisan fencing claims skeptically. In 19 Lee v. Virginia State Board of Elections, the district court concluded that “[a] careful 20 reading of the Carrington opinion would seem to reveal that the term ‘partisan fencing’ 21 does not create an independent cause of action aside from a typical First Amendment and 22 Equal Protection Clause claim.” 155 F. Supp. 3d 572, 584 (E.D. Va. 2015); see also 23 Ohio Org. Collaborative v. Husted, --- F. Supp. 3d ---, No. 2:15-CV-1802, 2016 WL 24 3248030, at *48 (S.D. Ohio May 24, 2016), reversed on other grounds by Ohio 25 Democratic Party, 2016 WL 4437605 (“Carrington and its progeny do not, however, 26 appear to create a separate equal protection cause of action to challenge a facially neutral 27 law that was allegedly passed with the purpose of fencing out voters of a particular 28 political affiliation.”). Instead of applying to party affiliation “the level of scrutiny that - 24 - 1 the Constitution requires for laws that discriminate on the basis of race or any other 2 suspect class,” One Wisconsin, 2016 WL 2757454, at *12, these courts analyzed partisan 3 fencing claims under the Anderson-Burdick framework. 4 The Court finds these cases persuasive, especially considering the dearth of 5 authority for treating party affiliation as a suspect class. Accordingly, the Court will 6 apply the Anderson-Burdick balancing framework to determine whether the burdens 7 imposed by H.B. 2023 are justified.10 For substantially the same reasons the Court 8 articulated in its analysis of Plaintiffs’ other constitutional claims, H.B. 2023 places only 9 minor burdens on voting and associational rights. Because H.B. 2023 does not impose 10 severe burdens, the Court’s scrutinizes Arizona’s justifications less severely. Arizona’s 11 important regulatory interests in preventing absentee voter fraud and preserving public 12 confidence in elections are sufficient to justify H.B. 2023 under this less exacting 13 standard. 14 II. Irreparable Harm 15 Because Plaintiffs are not likely to succeed on the merits of their claims, they have 16 not shown that H.B. 2023 will likely cause them irreparable harm. See Hale v. Dep’t of 17 Energy, 806 F.2d 910, 918 (9th Cir. 1986). Moreover, at this juncture Plaintiffs’ belief 18 that H.B. 2023 will prevent certain people from voting is speculative, as representatives 19 of the ADP admit that they have no way of knowing if any voters will be impacted by the 20 limitation on ballot collection. 21 possibility of irreparable harm is inconsistent with [the] characterization of injunctive 22 relief as an extraordinary remedy that may only be awarded upon a clear showing that the 23 plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. “Issuing a preliminary injunction based only on a 24 25 10 26 27 28 The Court also notes that Plaintiffs have not provided evidence that H.B. 2023 will have a cognizable disparate impact on Democrats as compared to voters of other political affiliations. As the Court explained in its analysis of Plaintiffs’ § 2 claim, the anecdotal observations of Plaintiffs’ declarants are not sufficient to prove a disparate impact. Thus, even if the Court were to apply the Arlington Heights framework, Plaintiffs have not shown that H.B. 2023 likely will impose greater burdens on Democrats as compared to similarly situated voters of other political affiliations. - 25 - 1 III. Balance of Hardships/Public Interest 2 Some authority indicates that a state “suffers a form of irreparable injury” 3 whenever it “is enjoined from effectuating statutes enacted by representatives of its 4 people[.]” Maryland v. King, --- U.S. ---, 133 S. Ct. 1, 3 (2012) (internal quotations and 5 citations omitted). Moreover, 6 the issue of likelihood of success on the merits has subsumed within it the other relevant factors. In other words, if the Court concludes that the regulations challenged by Plaintiffs unduly impinge upon constitutionally protected rights, the Court also can easily conclude that the public interest is served by an injunction prohibiting such impingement. Similarly, if the Court concludes that the challenged regulations fail to further any legitimate state interest, or are not sufficiently narrowly tailored in their effort to do so, the Court also can easily conclude that the balance of hardships tips in favor of the injunction Plaintiffs seek. 7 8 9 10 11 12 13 14 Project Vote, 455 F. Supp. 2d at 702. Accordingly, because Plaintiffs are not likely to succeed on their claims, the balance of hardships and public interest weigh against preliminary injunctive relief. CONCLUSION 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For these reasons, and based on the current record, Plaintiffs have not shown that H.B. 2023 likely will disparately impact minority voters. Nor have they shown that the law more than minimally burdens voting and associational rights. Deference to the judgments made by Arizona’s elected representatives in exercising their constitutionally prescribed authority to regulate elections is, therefore, required. IT IS ORDERED that the Joint Motion to Strike Portions of Plaintiffs’ Reply Memorandum and Reply Exhibits filed by Defendants and the ARP, (Doc. 167), is DENIED. // // // // // // - 26 - 1 2 3 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction of H.B. 2023, (Doc. 84), is DENIED. Dated this 23rd day of September, 2016. 4 5 6 7 8 Douglas L. Rayes United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 27 -

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