Leslie Feldman v. Arizona Sec'y of State's Ofc.

FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 04 2016

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

LESLIE FELDMAN; LUZ No. 16-16698

MAGALLANES; MERCEDEZ

HYMES; JULIO MORERA; CLEO D.C. No. 2:16-cv-01065-DLR

OVALLE; PETERSON ZAH, Former District of Arizona,

Chairman and First President of the Phoenix

Navajo Nation; THE DEMOCRATIC

NATIONAL COMMITTEE; DSCC,

AKA Democratic Senatorial Campaign ORDER

Committee; THE ARIZONA

DEMOCRATIC PARTY;

KIRKPATRICK FOR U.S. SENATE;

HILLARY FOR AMERICA,

Plaintiffs-Appellants,

BERNIE 2016, INC.,

Intervenor-Plaintiff-

Appellant,

v.

ARIZONA SECRETARY OF STATE’S

OFFICE; MICHELE REAGAN, in her

official capacity as Secretary of State of

Arizona; MARICOPA COUNTY

BOARD OF SUPERVISORS; DENNY

BARNEY; STEVE CHUCRI; ANDY

KUNASEK; CLINT HICKMAN;

STEVE GALLARDO, member of the

Maricopa County Board of Supervisors,

in their official capacities; MARICOPA

COUNTY RECORDER AND

ELECTIONS DEPARTMENT; HELEN

PURCELL, in her official capacity as

Maricopa County Recorder; KAREN

OSBORNE, in her official capacity as

Maricopa County Elections Director;

MARK BRNOVICH, in his official

capacity as Arizona Attorney General,

Defendants-Appellees,

THE ARIZONA REPUBLICAN

PARTY,

Intervenor-Defendant-

Appellee.

BEFORE: THOMAS, Chief Judge and O’SCANNLAIN, W. FLETCHER,

RAWLINSON, CLIFTON, BYBEE, CALLAHAN, N. R. SMITH, MURGUIA,

WATFORD, and OWENS, Circuit Judges.

THOMAS, Chief Judge:

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.

The standard for evaluating a stay pending appeal is similar to that employed

by district courts in deciding whether to grant a preliminary injunction. Lopez v.

2

Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983); see also Southeast Alaska

Conservation Council v. U.S. Army Corps of Eng’rs, 472 F.3d 1097, 1100 (9th Cir.

2006) (order) (discussing injunctions pending appeal). Therefore, we grant the

motion for a preliminary injunction pending appeal essentially for the reasons

provided in the dissent in Feldman v. Arizona Sec’y of State, __ F.3d __, 2016 WL

6427146, at *21–31 (9th Cir. 2016), a copy of which is attached (along with a copy

of the majority opinion).

However, there are additional considerations when we consider granting an

injunction pending appeal in an election case. When faced with an appeal in cases

in which an election is pending, federal courts are “required to weigh, in addition

to the harms attendant upon issuance or nonissuance of an injunction,

considerations specific to election cases.” Purcell v. Gonzalez, 549 U.S. 1, 4

(2006) (per curiam). And we do not “lightly interfere with . . . a state election.”

Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003)

(en banc).

At the outset, it is important to remember that the Supreme Court in Purcell

did not set forth a per se prohibition against enjoining voting laws on the eve of an

election. 549 U.S. at 4; see also Veasey v. Perry, 135 S. Ct. 9, 10 (2014)

(Ginsburg, J., dissenting) (“Purcell held only that courts must take careful account

3

of considerations specific to election cases, not that election cases are exempt from

traditional stay standards.”). Rather, courts must assess the particular

circumstances of each case in light of the concerns expressed by the Purcell court

to determine whether an injunction is proper.

In this case, the factors that animated the Supreme Court’s concern in

Purcell are not present. First, the injunction does not affect the state’s election

processes or machinery. The injunction pending appeal sought by plaintiffs would

not change the electoral process, it simply would enjoin enforcement of a

legislative act that would criminalize the collection, by persons other than the

voter, of legitimately cast ballots.

H.B. 2023 amended Arizona’s election statutes to provide that “A person

who knowingly collects voted or unvoted early ballots from another person is

guilty of a class 6 felony.” Ariz. Rev. Stat. § 16-1005(H). Enjoining enforcement

of H.B. 2023 will not have any effect on voters themselves, on the conduct of

election officials at the polls, or on the counting of ballots. Under H.B. 2023, as

the State agrees, legitimate ballots collected by third parties are accepted and

counted, and there are no criminal penalties to the voter. So, under H.B. 2023, if a

ballot collector were to bring legitimate ballots to a voting center, the votes would

be counted, but the collector would be charged with a felony. Thus, the only effect

4

of H.B. 2023, although it is serious, is to make the collection of legitimate ballots

by third parties a felony. So, unlike the circumstances involved in Purcell or

Southwest Voter, the injunction at issue here does not involve any change at all to

the actual election process. That process will continue unaltered, regardless of the

outcome of this litigation. The only effect is on third party ballot collectors, whose

efforts to collect legitimate ballots will not be criminalized, pending our review.

No one else in the electoral process is affected. And no electoral process is

affected.

In contrast, the voter-ID law at issue in Purcell changed who was eligible to

vote and directly told election officials to turn people away if they lacked the

proper proof of citizenship. That circumstance is far different from the case at bar

where, as the district court pointed out, the law “does not eliminate or restrict any

method of voting, it merely limits who may possess, and therefore return, a voter’s

early ballot.” Feldman v. Arizona Sec’y of State, __ F. Supp. 3d __, 2016 WL

5441180 at *9 (D. Ariz. 2016). Thus, in our case, in contrast to Purcell, an

injunction will not confuse election officials or deter people from going to the polls

for fear that they lack the requisite documentation. The election process is

unaffected.

5

Second, none of the cases that caution against federal court involvement in

elections involved a statute that newly criminalizes activity associated with voting.

This law is unique in that regard.

Third, the concern in Purcell and Southwest Voter was that a federal court

injunction would disrupt long standing state procedures. Here, the injunction

preserves the status quo prior to the recent legislative action in H.B. 2023. Every

other election cycle in Arizona has permitted the collection of legitimate ballots by

third parties to election officials. So, the injunction in this case does not involve

any disruption to Arizona’s long standing election procedures. To the contrary, it

restores the status quo ante to the disruption created by the Arizona legislature that

is affecting this election cycle for the first time.

Fourth, unlike the circumstances in Purcell and other cases, plaintiffs did not

delay in bringing this action. This action was filed less than six weeks after the

passage of the legislation, and plaintiffs have pursued expedited consideration of

their claims at every stage of the litigation, both before the district court and ours.

Indeed, it was the State that opposed an expedited hearing and briefing schedule at

every turn, not the plaintiffs.

Fifth, Purcell was decided prior to the Supreme Court’s opinion in Shelby

Cty. Ala. v. Holder, __ U.S. __, 133 S. Ct. 2612 (2013), which declared

6

unconstitutional the Voting Rights Act’s coverage formula, and effectively

invalidated preclearance requirements under § 5 of the Act. In short, Purcell was

decided when the preclearance regime under § 5 of the Voting Rights Act was still

intact, and Arizona was a covered jurisdiction. The Court in Purcell emphasized

that the challenged law had already passed the then-effective § 5 preclearance

requirements of the United States Department of Justice. As a result, there was a

prima facie reason to believe that the challenged statute was not discriminatory,

alleviating the concern that the law violated voting rights. Purcell, 549 U.S. at 3.

That same reassurance is absent here.

Indeed, this case presents precisely the opposite concern. In 2012, Arizona

submitted a previous iteration of H.B. 2023 for preclearance. The Department of

Justice expressed concern and refused to preclear the bill, S.B. 1412, without more

information about its impact on minority voters. Rather than address this concern,

Arizona withdrew S.B. 1412 from preclearance and repealed it the following

session. Now, unhindered by the obstacle of preclearance, Arizona has again

enacted this law—a mere seven months before the general election—with nothing

standing in its way except this court. Thus, not only are the preclearance

protections considered important in Purcell absent in this case, but it is quite

7

doubtful that the Justice Department would have granted preclearance. In the

wake of Shelby County, the judiciary provides the only meaningful review of

legislation that may violate the Voting Rights Act.1

Sixth, unlike the situation in Purcell, we have, as a court, given careful and

thorough consideration to these issues. Purcell involved a barebones order issued

by a two judge motion panel, which did not contain a reasoned decision. As the

Court described in Purcell, “[t]here has been no explanation given by the Court of

Appeals showing the ruling and findings of the District Court to be incorrect.” 549

U.S. at 5. Here, a three judge merits panel has held oral argument and issued a

detailed, reasoned decision and dissent. Our en banc court has also considered

these issues and reached a decision essentially for the reasons set forth in the

dissent. This is not a case in which our court has issued a stay without a detailed

consideration and resolution of the issues.

1

Meaningful review of H.B. 2023 is especially important because, as I

observed in my dissent, the sponsors of H.B. 2023 could not identify a single

example of voter fraud in Arizona caused by ballot collection, nor is there one to

be found anywhere in the voluminous record before us. Judge Bybee cites to a

2005 report from the bi-partisan Commission on Federal Election Reform, which

recommends that states should reduce the risks of fraud and abuse in absentee

voting by prohibiting “third-party” organizations from handling absentee ballots.

Dissent at 2. However, the Commission’s recommendation was issued before the

Supreme Court invalidated the § 5 preclearance requirement; since that time, the

voting rights landscape has changed considerably, requiring courts to exercise

more vigilance as the primary bulwarks against voter suppression.

8

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.

9

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESLIE FELDMAN; LUZ No. 16-16698

MAGALLANES; MERCEDEZ

HYMES; JULIO MORERA; CLEO D.C. No.

OVALLE; PETERSON ZAH, Former 2:16-cv-01065-DLR

Chairman and First President of

the Navajo Nation; THE

DEMOCRATIC NATIONAL OPINION

COMMITTEE; DSCC, AKA

Democratic Senatorial Campaign

Committee; THE ARIZONA

DEMOCRATIC PARTY;

KIRKPATRICK FOR U.S. SENATE;

HILLARY FOR AMERICA,

Plaintiffs-Appellants,

BERNIE 2016, INC.,

Intervenor-Plaintiff-Appellant,

v.

ARIZONA SECRETARY OF

STATE’S OFFICE; MICHELE

REAGAN, in her official capacity

as Secretary of State of Arizona;

MARICOPA COUNTY BOARD OF

SUPERVISORS; DENNY BARNEY;

STEVE CHUCRI; ANDY KUNASEK;

CLINT HICKMAN; STEVE

GALLARDO, member of the

Maricopa County Board of

2 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

Supervisors, in their official

capacities; MARICOPA COUNTY

RECORDER AND ELECTIONS

DEPARTMENT; HELEN PURCELL,

in her official capacity as

Maricopa County Recorder;

KAREN OSBORNE, in her official

capacity as Maricopa County

Elections Director; MARK

BRNOVICH, in his official

capacity as Arizona Attorney

General,

Defendants-Appellees,

THE ARIZONA REPUBLICAN

PARTY,

Intervenor-Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Argued and Submitted October 19, 2016

San Francisco, California

Filed October 28, 2016

Before: Sidney R. Thomas, Chief Judge,

and Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Dissent by Chief Judge Thomas

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 3

SUMMARY*

Civil Rights

The panel affirmed the district court’s order denying

plaintiffs’ motion for a preliminary injunction seeking to

prohibit the enforcement of Arizona House Bill 2023, which

precludes individuals who do not fall into one of several

exceptions (e.g., election officials, mail carriers, family

members, household members, and specified caregivers) from

collecting early ballots from another person.

Plaintiffs alleged that Arizona House Bill 2023 violates

§ 2 of the Voting Rights Act of 1965, the Fourteenth

Amendment and the First Amendment because among other

things, it disproportionately and adversely impacts minorities,

unjustifiably burdens the right to vote, and interferes with the

freedom of association.

Addressing the Voting Rights Act claim, the panel held

that the district court did not clearly err in concluding that

plaintiffs adduced no evidence showing that House Bill 2023

would have an impact on minorities different than the impact

on non-minorities, let alone that the impact would result in

less opportunity for minorities to participate in the political

process as compared to non-minorities. The panel held that

because plaintiffs’ failed to present such evidence, the district

court did not err in declining to consider whether House Bill

2023 interacted with racial discrimination to cause a

discriminatory result.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

The panel held that the district court did not clearly err in

(1) finding that House Bill 2023 imposed a minimal burden

on voters’ Fourteenth Amendment right to vote; (2) finding

that Arizona asserted sufficiently weighty interests justifying

the limitation; and (3) ultimately concluding that plaintiffs

failed to establish that they were likely to succeed on the

merits of their Fourteenth Amendment challenge.

The panel held that plaintiffs were unlikely to succeed on

the merits of their First Amendment claim. The panel

concluded that ballot collection is not expressive conduct

implicating the First Amendment, but even if it were, Arizona

has an important regulatory interest justifying the minimal

burden that House Bill 2023 imposes on freedom of

association.

Finally, the panel held that the impact of House Bill 2023

on prospective voters, which the district court found largely

to be inconvenience, did not outweigh the hardship on

Arizona, which has a compelling interest in the enforcement

of its duly enacted laws.

Dissenting, Chief Judge Thomas stated that Arizona has

criminalized one of the most popular and effective methods

by which minority voters cast their ballots, and that the law

violates the Constitution and the Voting Rights Act.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 5

COUNSEL

Bruce V. Spiva (argued), Amanda R. Callais, Elisabeth C.

Frost, and Marc E. Elias, Perkins Coie LLP, Washington,

D.C.; Joshua L. Kaul, Perkins Coie LLP, Madison,

Wisconsin; Sarah R. Gonski and Daniel C. Barr, Perkins Coie

LLP, Phoenix, Arizona; for Plaintiffs-Appellants.

Malcolm Seymour, Garvey Schubert Baker, New York, New

York; D. Andrew Gaona, Andrew S. Gordon, and Roopali H.

Desai, Coopersmith Brockelman PLC, Phoenix, Arizona, for

Intervenor-Plaintiff-Appellant.

Karen J. Hartman-Tellez (argued) and Kara M. Karlson,

Assistant Attorneys General; Mark Brnovich, Attorney

General; Office of the Attorney General, Phoenix, Arizona;

for Defendants-Appellees.

Sara J. Agne (argued), Colin P. Ahler, and Brett W. Johnson,

Snell & Wilmer LLP, Phoenix, Arizona, for Intervenor-

Defendants-Appellees.

6 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

OPINION

IKUTA, Circuit Judge:

In April 2016, Leslie Feldman and other appellants1

brought an action in district court challenging Arizona House

Bill 2023 (H.B. 2023), which precludes individuals who do

not fall into one of several exceptions (e.g., election officials,

mail carriers, family members, household members, and

specified caregivers) from collecting early ballots from

another person. See 2016 Ariz. Legis. Serv. Ch. 5, § 1

(H.B. 2023) (West) (codified at Ariz. Rev. Stat. § 16-

1005(H)–(I)). According to Feldman, this state statute

violates § 2 of the Voting Rights Act of 1965, 52 U.S.C.

§ 10301, the Fourteenth Amendment, and the First

Amendment 2 because, among other things, it

disproportionately and adversely impacts minorities,

unjustifiably burdens the right to vote, and interferes with the

1

The appellants here (plaintiffs below) are Leslie Feldman, Luz

Magallanes, Mercedez Hymes, Julio Morera, and Cleo Ovalle, registered

Democratic voters in Maricopa County, Arizona; Peterson Zah, former

Chairman and First President of the Navajo Nation and registered voter in

Apache County, Arizona; the Democratic National Committee; the DSCC,

aka Democratic Senatorial Campaign Committee; the Arizona Democratic

Party; a committee supporting the election of Democratic United States

Representative Ann Kirkpatrick to U.S. Senate; and Hillary for America,

a committee supporting the election of Hillary Clinton as President of the

United States. The intervenor-plaintiff/appellant is Bernie 2016, Inc., a

committee supporting the election of Bernie Sanders as President of the

United States. For convenience, we refer to the appellants as “Feldman.”

2

Because H.B. 2023 is a state law, the challenge technically arises

under the Fourteenth Amendment, which applies the First Amendment’s

protections against States and municipalities. See City of Ladue v. Gilleo,

512 U.S. 43, 45 & n.1 (1994).

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 7

freedom of association. After the district court denied

Feldman’s motion for a preliminary injunction, Feldman filed

this emergency interlocutory appeal. Because the district

court did not abuse its discretion in denying the motion, we

affirm.

I

The district court’s order denying the motion for a

preliminary injunction sets forth the facts in detail, Feldman

v. Ariz. Sec’y of State’s Office, — F. Supp. 3d —, No. CV-16-

01065-PHX-DLR, 2016 WL 5341180 (D. Ariz. Sept. 23,

2016), so we provide only a brief summary of the pertinent

background facts and procedural history. The district court’s

factual findings are discussed in detail as they become

relevant to our analysis.

A

Arizona law permits “[a]ny qualified elector” to “vote by

early ballot.” Ariz. Rev. Stat. § 16-541(A).3 Early voting can

occur by mail or in person at an on-site early voting location

in the 27 days before an election. See id. § 16-542. All

Arizona counties operate at least one on-site early voting

location. Voters may also return their ballots in person at any

polling place without waiting in line, and several counties

additionally provide special drop boxes for early ballot

submission. Moreover, voters can vote early by mail, either

for an individual election or by having their names added to

a permanent early voting list. An early ballot is mailed to

3

A “qualified elector” is any person at least eighteen years of age on

or before the date of the election “who is properly registered to vote.”

Ariz. Rev. Stat. § 16-121(A).

8 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

every person on that list as a matter of course no later than the

first day of the early voting period. Id. § 16-544(F). Voters

may return their early ballot by mail at no cost, but it must be

received by 7:00 p.m. on election day. Id. §§ 16-542(C); 16-

548(A).

Since 1992, Arizona has prohibited any person other than

the elector from having “possession of that elector’s unvoted

absentee ballot.” See 1991 Ariz. Legis. Serv. Ch. 310, § 22

(S.B. 1390) (West). In 1997, the Arizona legislature

expanded that prohibition to prevent any person other than

the elector from having possession of any type of unvoted

early ballot. See 1997 Ariz. Legis. Serv. Ch. 5, § 18 (S.B.

1003) (West) (codified at Ariz. Rev. Stat. § 16-542(D)). As

the Supreme Court of Arizona explained, regulations on the

distribution of absentee and early ballots advance Arizona’s

constitutional interest in secret voting, see Ariz. Const. art.

VII, § 1, “by setting forth procedural safeguards to prevent

undue influence, fraud, ballot tampering, and voter

intimidation.” Miller v. Picacho Elementary Sch. Dist. No.

33, 179 Ariz. 178, 180 (1994) (en banc).

Arizona has long supplemented its protection of the early

voting process through the use of penal provisions, as set

forth in section 16-1005 of Arizona’s statutes. For example,

since 1999, it has been a class 5 felony for a person

knowingly to mark or to punch an early ballot with the intent

to fix an election. See 1999 Ariz. Legis. Serv. Ch. 32, § 12

(S.B. 1227) (codified as amended at Ariz. Rev. Stat. § 16-

1005(A)). And in 2011, Arizona enacted legislation that

made offering to provide any consideration to acquire an

early ballot a class 5 felony. See 2011 Ariz. Legis. Serv. Ch.

105, § 3 (S.B. 1412) (codified at Ariz. Rev. Stat. § 16-

1005(B)). That same legislation regulated the process of

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 9

delivering “more than ten early ballots to an election

official.” See id. (formerly codified at Ariz. Rev. Stat. § 16-

1005(D)).

In 2016, Arizona again revised section 16-1005 by

enacting H.B. 2023 to regulate the collection of early ballots.

This law added the following provisions to the existing

statute imposing penalties for persons abusing the early

voting process:

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.

I. Subsection H of this section does not

apply to:

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.

2. A family member, household member or

caregiver of the voter. For the purposes of

this paragraph:

10 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

(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.

Ariz. Rev. Stat. § 16-1005(H)–(I). Thus, this amendment to

section 16-1005 makes it a felony for third parties to collect

early ballots from voters unless the collector falls into one of

many exceptions. See id. The prohibition does not apply to

election officials acting as such, mail carriers acting as such,

any family members, any persons who reside at the same

residence as the voter, or caregivers, defined as any person

who provides medical or health care assistance to voters in a

range of adult residences and facilities. Id. § 16-1005(I)(2).

H.B. 2023 does not provide that ballots collected in violation

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 11

of this statute are disqualified or disregarded in the final

election tally.

Before H.B. 2023’s enactment, third-party early ballot

collection was available to prospective voters as an additional

and convenient means of submitting a ballot. It was also an

important part of the Democratic get-out-the-vote strategy in

Arizona. Since at least 2002, the Arizona Democratic Party

has collected early ballots from its core constituencies, which

it views to include Hispanic, Native American, and African

American voters. According to Feldman, H.B. 2023’s

limitation on third-party ballot collection will require the

Democratic Party to retool its get-out-the-vote efforts, for

example by increasing voter transportation to polling

locations and revising its training scripts to focus on early in-

person voting. This, in turn, will require the party to divert

resources from projects like candidate promotion to more

direct voter outreach to ensure that voters are either casting

early ballots in person or mailing their ballots on time.

B

Feldman sued Arizona4 in April 2016 alleging: (1) a

4

The appellees here (defendants below) are the Arizona Secretary of

State’s Office; Arizona Secretary of State Michele Reagan in her official

capacity; the Maricopa County Board of Supervisors; members of the

Maricopa County Board of Supervisors Denny Barney, Steve Chucri,

Andy Kunasek, Clint Hickman, and Steve Gallardo in their official

capacities; the Maricopa County Recorder and Elections Department;

Maricopa County Recorder Helen Purcell and Maricopa County Elections

Director Karen Osbourne in their official capacities; and Arizona Attorney

General Mark Brnovich in his official capacity. The intervenor-

defendant/appellee is the Arizona Republican Party. For convenience, we

12 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

violation of § 2 of the Voting Rights Act on account of

H.B. 2023’s disparate adverse impact on voting opportunities

for Hispanics, African Americans, and Native Americans,

(2) a denial of equal protection through unjustifiable

burdening of the right to vote, (3) a denial of equal protection

through disparate treatment, (4) a violation of the First

Amendment right to freedom of association, and (5) a

violation of the First and Fourteenth Amendments through the

“fencing out” of Democratic voters.

In June, Feldman moved for a preliminary injunction

prohibiting the enforcement of H.B. 2023. After full briefing,

the district court denied the motion on September 23, 2016,

on the ground that Feldman was not likely to succeed on the

merits of any of her claims and had therefore also not shown

a likelihood of irreparable harm. As to the § 2 claim, the

district court reviewed the totality of the evidentiary record

and found no evidence of a cognizable disparity between

minority and non-minority voters. The district court held that

Feldman was unlikely to succeed on her Fourteenth

Amendment claim because H.B. 2023’s burden on voting was

minimal and justified by the State’s interests in preventing

absentee voter fraud and the perception of fraud. As to

Feldman’s First Amendment claims, the district court held

that collecting ballots is not an expressive activity and that

even if it were, the State’s regulatory interests were sufficient

to justify the slight burden that H.B. 2023 imposes. The

district court likewise ruled that Feldman was unlikely to

succeed on her partisan fencing claim.

refer to the appellees as “Arizona,” where appropriate, and otherwise use

their individual names.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 13

Feldman filed a timely notice of interlocutory appeal on

the same day that the district court entered its order, and a

few days later she filed an emergency motion in the district

court to stay its order and enjoin the enforcement of

H.B. 2023 pending appeal. The district court noted that the

standard for obtaining an injunction pending appeal was the

same as the standard for obtaining a preliminary injunction

and denied the motion because Feldman had not shown that

she was likely to succeed on the merits, Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 22 (2008), or that “there are

serious questions going to the merits” and “the balance of

hardships tips sharply in the plaintiff’s favor.” All. for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

Feldman filed an emergency motion with this court for an

injunction pending appeal and for an expedited appeal. On

October 14, a motions panel denied the former request, but

granted the latter. The parties were directed to file

simultaneous merits briefs by October 17, and the appeal was

argued orally on October 19.5

II

We have jurisdiction over this interlocutory appeal

pursuant to 28 U.S.C. § 1292(a)(1). On an appeal from the

denial of a preliminary injunction, we do not review the

underlying merits of the claims. Sw. Voter Registration Educ.

5

In addition to this appeal, Feldman appealed another of the district

court’s orders denying a separate motion to enjoin preliminarily other

election practices challenged in the complaint. That appeal has similarly

been expedited and will be the subject of a separate disposition. See

Feldman v. Arizona Sec’y of State’s Office, No. 16-16865, — F.3d — (9th

Cir. 2016).

14 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en

banc) (per curiam). Instead, “[o]ur review is limited and

deferential,” id., and we must affirm the district court’s order

unless the district court abused its discretion. Hendricks v.

Bank of Am., N.A., 408 F.3d 1127, 1139 (9th Cir. 2005).

Our abuse-of-discretion analysis proceeds in two steps.

See Gilman v. Schwarzenegger, 638 F.3d 1101, 1105–06 (9th

Cir. 2011) (citing United States v. Hinkson, 585 F.3d 1247,

1261 (9th Cir. 2009) (en banc)). At step one, we ask whether

the district court “based its ruling on an erroneous view of the

law,” Bay Area Addiction Research & Treatment, Inc. v. City

of Antioch, 179 F.3d 725, 730 (9th Cir. 1999), reviewing the

district court’s interpretation of underlying legal principles de

novo, Shelley, 344 F.3d at 918. We then ask whether the

district court’s application of the legal standard was illogical,

implausible, or otherwise without support in inferences that

may be drawn from the facts in the record. Hinkson,

585 F.3d at 1262. “We review findings of fact for clear

error.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d

1281, 1286 (9th Cir. 2013). “[A]s long as the district court

got the law right, it will not be reversed simply because the

appellate court would have arrived at a different result if it

had applied the law to the facts of the case.” Id. (quoting

Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th

Cir. 2011)).6

6

The dissent suggests that the district court’s factual findings are

entitled to less weight here because “the district court did not conduct any

evidentiary hearings to resolve disputed factual issues” and “the parties’

submissions were by affidavit.” See Dissent at 56–57 n.1. Our review of

factual findings, however, does not change based on the nature of the

evidence. “Findings of fact, whether based on oral or other evidence,

must not be set aside unless clearly erroneous.” Fed. R. Civ. P. 52(a)(6);

see also Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 15

A preliminary injunction is “an extraordinary remedy that

may only be awarded upon a clear showing that the plaintiff

is entitled to such relief.” Winter, 555 U.S. at 22. The

standard to obtain such relief is accordingly stringent: “A

plaintiff seeking a preliminary injunction must establish that

he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is

in the public interest.” Id. at 20. A plaintiff must make a

showing as to each of these elements, although in our circuit

“if a plaintiff can only show that there are ‘serious questions

going to the merits’—a lesser showing than likelihood of

success on the merits—then a preliminary injunction may still

issue if the ‘balance of hardships tips sharply in the plaintiff’s

favor,’ and the other two Winter factors are satisfied.” Shell

Offshore, 709 F.3d at 1291. “That is, ‘serious questions

going to the merits’ and a balance of hardships that tips

sharply towards the plaintiff can support issuance of a

preliminary injunction, so long as the plaintiff also shows that

there is a likelihood of irreparable injury and that the

(“Where there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous. This is so even when

the district court’s findings do not rest on credibility determinations, but

are based instead on physical or documentary evidence and inferences

from other facts.” (citations omitted)). It is immaterial that the fact-

finding occurred here at the preliminary injunction stage; Rule 52(a)(6) by

its terms applies to all findings of fact, which necessarily includes the

findings of fact that “the court must . . . state” to support denial of an

interlocutory injunction, see Fed. R. Civ. P. 52(a)(2). See Anderson,

470 U.S. at 574 (“Rule 52(a) ‘does not make exceptions or purport to

exclude certain categories of factual findings from the obligation of a

court of appeals to accept a district court’s findings unless clearly

erroneous.’” (quoting Pullman-Standard v. Swint, 456 U.S. 273, 287

(1982))).

16 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

injunction is in the public interest.” All. for the Wild Rockies,

632 F.3d at 1135.

When faced with a request to interfere with a state’s

election laws “just weeks before an election,” federal courts

are “required to weigh, in addition to the harms attendant

upon issuance or nonissuance of an injunction, considerations

specific to election cases.” Purcell v. Gonzalez, 549 U.S. 1,

4 (2006) (per curiam). These considerations often counsel

restraint. In the context of legislative redistricting, for

example, the Supreme Court has long cautioned that “where

an impending election is imminent and a State’s election

machinery is already in progress, equitable considerations

might justify a court in withholding the granting of

immediately effective relief . . . even though the existing

apportionment scheme was found invalid.” Reynolds v. Sims,

377 U.S. 533, 585 (1964). Similarly, the Supreme Court has

declined to order the printing of new ballots at a “late date”

even where the existing ballots were held to have

unconstitutionally excluded certain candidates. Williams v.

Rhodes, 393 U.S. 23, 34 (1968). We have also declined on

equitable grounds to interfere with the mechanics of fast-

approaching elections. See Lair v. Bullock, 697 F.3d 1200,

1214 (9th Cir. 2012) (staying a district court’s injunction

“given the imminent nature of the election”); Shelley,

344 F.3d at 919 (declining to enjoin an imminent recall

election). And we are not alone in doing so. See, e.g.,

Veasey v. Abbott, 830 F.3d 216, 243 (5th Cir. 2016) (en banc)

(“[T]he district court should fashion an appropriate remedy in

accord with its findings; provided, however, that any remedy

will not be made effective until after the November 2016

election.”); Veasey v. Perry, 769 F.3d 890, 895 (5th Cir.

2014) (staying an injunction “in light of the importance of

maintaining the status quo on the eve of an election”); Colon-

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 17

Marrero v. Conty-Perez, 703 F.3d 134, 139 n.9 (1st Cir.

2012) (noting that “even where plaintiff has demonstrated a

likelihood of success, issuing an injunction on the eve of an

election is an extraordinary remedy with risks of its own”);

Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 345

(6th Cir. 2012) (“As a general rule, last-minute injunctions

changing election procedures are strongly disfavored.”); Ne.

Ohio Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1012

(6th Cir. 2006) (vacating in part a temporary restraining order

that “needlessly creates disorder in electoral processes”).

III

With these principles in mind, we turn to our review of

the district court’s order denying Feldman’s motion for a

preliminary injunction against the enforcement of H.B. 2023.

On appeal, Feldman argues that the district court erred in

concluding that she was unlikely to succeed on her Voting

Rights Act, Fourteenth Amendment, and First Amendment

claims.7 We consider each of these arguments in turn.

A

We first consider Feldman’s claim that H.B. 2023 violates

§ 2 of the Voting Rights Act.

1

“Inspired to action by the civil rights movement,”

Congress enacted the Voting Rights Act of 1965 to improve

7

Feldman does not raise the claim that H.B. 2023 is invalid because

it was intended to suppress votes based on partisan affiliation or

viewpoint, i.e., a theory of prohibited partisan fencing.

18 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

enforcement of the Fifteenth Amendment.8 Shelby County v.

Holder, 133 S. Ct. 2612, 2619 (2013). Section 5 of the Act

prevented states from making certain changes in voting

procedures unless those changes obtained “preclearance,”

meaning they were approved by either the Attorney General

or a court of three judges. Id. at 2620. Section 2 of the Act

forbade all states from enacting any “standard, practice, or

procedure . . . imposed or applied . . . to deny or abridge the

right of any citizen of the United States to vote on account of

race or color.” Id. at 2619 (quoting Voting Rights Act of

1965, § 2, 79 Stat. 437).

“At the time of the passage of the Voting Rights Act of

1965, § 2, unlike other provisions of the Act, did not provoke

significant debate in Congress because it was viewed largely

as a restatement of the Fifteenth Amendment.” Chisom v.

Roemer, 501 U.S. 380, 392 (1991). In 1980, a plurality of the

Supreme Court held that the Fifteenth Amendment, and

therefore the Voting Rights Act, were violated only if there

was intentional discrimination on account of race. City of

Mobile v. Bolden, 446 U.S. 55, 60–62 (1980) (plurality

opinion).

In response to Bolden, “Congress substantially revised § 2

to make clear that a violation could be proved by showing

discriminatory effect alone and to establish as the relevant

legal standard the ‘results test,’” applied by the Supreme

Court in White v. Regester, 412 U.S. 755 (1973), and by other

8

The Fifteenth Amendment provides that “[t]he right of citizens of

the United States to vote shall not be denied or abridged by the United

States or by any State on account of race, color, or previous condition of

servitude,” and authorizes Congress to enforce the provision “by

appropriate legislation.” U.S. Const. amend. XV.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 19

federal courts before Bolden. Thornburg v. Gingles, 478 U.S.

30, 35 (1986). Opinions decided before Bolden had

addressed “vote dilution” claims, that is, challenges to

practices that diluted a minority group’s voting power. See

Shaw v. Reno, 509 U.S. 630, 641 (1993). In amending § 2,

Congress acted to “prohibit legislation that results in the

dilution of a minority group’s voting strength, regardless of

the legislature’s intent.” Id. (emphasis omitted); see also

Gingles, 478 U.S. at 47–51. Section 2 also applied to “vote

denial” claims, meaning challenges to practices that denied

citizens the opportunity to vote, such as literacy tests.

As amended in the 1982 amendments, Section 2 of the

Voting Rights Act provides:

§10301. Denial or abridgement of right to

vote on account of race or color through

voting qualifications or prerequisites;

establishment of violation

(a) No voting qualification or prerequisite to

voting or standard, practice, or procedure shall

be imposed or applied by any State or political

subdivision in a manner which results in a

denial or abridgement of the right of any

citizen of the United States to vote on account

of race or color, or in contravention of the

guarantees set forth in section 10303(f)(2) of

this title, as provided in subsection (b).

(b) A violation of subsection (a) is established

if, based on the totality of circumstances, it is

shown that the political processes leading to

nomination or election in the State or political

20 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

subdivision are not equally open to

participation by members of a class of citizens

protected by subsection (a) in that its

members have less opportunity than other

members of the electorate to participate in the

political process and to elect representatives

of their choice.

52 U.S.C. § 10301.

The Supreme Court interpreted this language in

Thornburg v. Gingles, 478 U.S. 30. Gingles explained that to

make out a § 2 violation, a plaintiff must show that “under the

totality of the circumstances, a challenged election law or

procedure had the effect of denying a protected minority an

equal chance to participate in the electoral process.” Id. at 44

n.8. The “totality of the circumstances” includes factors that

the Senate derived from cases decided before Bolden. See

id.9 As summarized by the Court, “[t]he essence of a § 2

9

As explained in Gingles, the relevant 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

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 21

claim is that a certain electoral law, practice, or structure

interacts with social and historical conditions to cause an

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;

7. the extent to which members of the minority group

have been elected to public office in the jurisdiction.

Additional factors that in some cases have had

probative value as part of plaintiffs’ evidence to

establish a violation are:

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.

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.

478 U.S. at 36–37 (internal quotation marks omitted). The Supreme Court

has stated that another relevant factor is “[a] State’s justification for its

electoral system.” Houston Lawyers’ Ass’n v. Attorney Gen. of Tex.,

501 U.S. 419, 426–27 (1991).

22 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

inequality in the opportunities enjoyed by black and white

voters to elect their preferred representatives.” Id. at 47.

Although many courts have analyzed vote dilution claims,

“there is little authority on the proper test to determine

whether the right to vote has been denied or abridged on

account of race.” Veasey v. Abbott, 830 F.3d at 244

(emphasis omitted); see also Ohio Democratic Party v.

Husted, 834 F.3d 620, No. 16-3561, 2016 WL 4437605 (6th

Cir. Aug. 23, 2016).10 Recently, the Fourth, Fifth, and Sixth

Circuits (and, in part, the Seventh Circuit) have adopted a

two-part framework, based on the text of § 2 and the Supreme

Court’s guidance in Gingles. The test is as follows:

[1] [T]he challenged standard, practice, or

procedure must impose a discriminatory

burden on members of a protected class,

meaning that members of the protected class

have less opportunity than other members of

10

Vote dilution can occur, for instance, where a practice has the effect

of reducing or nullifying “minority voters’ ability, as a group, to elect the

candidate of their choice,” Shaw, 509 U.S. at 641 (internal quotation

marks omitted), and typically involves different arguments and evidence

than in vote denial claims. For instance, Gingles explained that to prove

that use of multimember districts gives minorities less opportunity to elect

representatives of their choice in violation of § 2, a plaintiff would

generally have to demonstrate: (1) that the minority group at issue is both

“sufficiently large and geographically compact to constitute a majority in

a single-member district” and “politically cohesive,” and (2) that “the

white majority votes sufficiently as a bloc to enable it—in the absence of

special circumstances, such as the minority candidate running

unopposed—usually to defeat the minority’s preferred candidate.”

478 U.S. at 50–51 (citations omitted). Such evidence would generally not

be applicable to a claim that a specific practice unequally burdens the right

to participate in the political process (a vote denial claim).

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 23

the electorate to participate in the political

process and to elect representatives of their

choice, [and]

[2] [T]hat 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); Veasey v. Abbott, 830 F.3d at 244;

Ohio Democratic Party, 2016 WL 4437605 at *13–14; Frank

v. Walker, 768 F.3d 744, 754–55 (7th Cir. 2014) (adopting

the test “for the sake of argument”).

We agree with this two-part framework, which is

consistent with Supreme Court precedent, our own precedent,

and with the text of § 2. Under the first prong, a plaintiff

must show that the challenged voting practice results in

members of a protected minority group having less

opportunity than other members of the electorate to

participate in the political process. Gonzalez v. Arizona,

677 F.3d 383, 405 (9th Cir. 2012) (en banc) (citing Smith v.

Salt River Project Agric. Improvement & Power Dist.,

109 F.3d 586, 595 (9th Cir. 1997)). This language

“encompasses Section 2’s definition of what kinds of burdens

deny or abridge the right to vote.” Veasey v. Abbott, 830 F.3d

at 244. Section 2(a) prohibits a state or political subdivision

from imposing any “voting qualification or prerequisite to

voting” or other “standard, practice, or procedure” in a way

that “results in a denial or abridgement” of any U.S. citizen’s

right to vote on account of race, color, or membership in “a

language minority group,” 52 U.S.C. § 10303(f), “as provided

in subsection (b).” Id. § 10301(a). Subsection (b), in turn,

24 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

provides that a plaintiff can establish a violation of § 2(a) if

“based on the totality of circumstances,” the “political

processes leading to nomination or election in the State or

political subdivision are not equally open to participation” by

members of a protected class “in that its members have less

opportunity than other members of the electorate to

participate in the political process and to elect representatives

of their choice.” Id. § 10301(b).

In interpreting this first prong, we have held that “a bare

statistical showing of disproportionate impact on a racial

minority does not satisfy the § 2 ‘results’ inquiry.” Salt

River, 109 F.3d at 595 (emphasis omitted). Rather, “Section

2 plaintiffs must show a causal connection between the

challenged voting practice and [a] prohibited discriminatory

result.” Id. As explained by the Sixth Circuit, a “challenged

standard or practice causally contributes to the alleged

discriminatory impact by affording protected group members

less opportunity to participate in the political process.” Ohio

Democratic Party, 2016 WL 4437605, at *13.

The second prong “draws on the Supreme Court’s

guidance in Gingles,” Veasey v. Abbott, 830 F.3d at 245,

which explains the language in § 2(b) requiring a plaintiff to

show a violation of the Act “based on the totality of

circumstances.” 52 U.S.C. § 10301(b). Under this second

prong, the plaintiff must show that the challenged practice

interacted with racial discrimination “to cause an inequality

in the opportunities enjoyed by [minority] and [non-minority]

voters to elect their preferred representatives.” Gingles,

478 U.S. at 47; see also Gonzalez, 677 F.3d at 405–06. In

Gonzalez, we did not have occasion to reach this second step

because the plaintiff had adduced no evidence of a causal

connection between the challenged photo ID law and a

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 25

disproportionate burden on minorities. 677 F.3d at 407. If a

plaintiff adduces no evidence that the challenged practice

places a burden on protected minorities that causes them to

have “less opportunity than other members of the electorate

to participate in the political process and to elect

representatives of their choice,” 52 U.S.C. § 10301(b), there

is no § 2 violation “whether or not” the challenged practice is

“interacting with the history of discrimination” at the second

prong of the test, Gonzalez, 677 F.3d at 407. However, we

agree with our sister circuits that to show a § 2 violation, a

plaintiff must establish that the challenged practice imposes

a disproportionate burden on minorities compared to non-

minorities, and that the challenged law interacts with social

and historical conditions that have produced discrimination

to cause minorities to have fewer opportunities to participate

in the electoral process. See League of Women Voters of

N.C., 769 F.3d at 240; Veasey v. Abbott, 830 F.3d at 244;

Ohio Democratic Party, 2016 WL 4437605, at *13–14.

The district court’s legal determinations are reviewed de

novo, Gonzalez, 677 F.3d at 406, but we defer to “the district

court’s superior fact-finding capabilities,” and review its

factual findings for clear error, Salt River, 109 F.3d at 591.

In analyzing the first prong of a § 2 claim, the district court

has the primary responsibility for determining “based ‘upon

a searching practical evaluation of the past and present

reality,’. . . whether the political process is equally open to

minority voters.” Id. (quoting Gingles, 478 U.S. at 79). At

the second prong of a § 2 claim, the district court must make

the “ultimate finding whether, under the totality of the

circumstances, the challenged practice violates § 2.”

26 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

Gonzalez, 677 F.3d at 406. This “ultimate finding” is a

question of fact that we review for clear error.11 Id.

2

This case raises a vote denial claim, in that Feldman

claims that H.B. 2023’s restriction on the use of certain third-

party ballot collectors denies or abridges minorities’

opportunity to vote. As to the first prong of a § 2 claim,

Feldman argues that H.B. 2023 caused minority group

members to have less opportunity to participate in the

political process than non-minorities. Feldman bases this

claim on a multi-step argument. First, Feldman points to

evidence in the record that minorities are statistically less

likely than non-minorities to have access to a vehicle, are

more likely to have lower levels of education and English

proficiency than non-minorities, are more likely to suffer

from health problems than non-minorities, are more likely to

have difficult financial situations than non-minorities, and are

more likely than non-minorities to rent houses rather than

own them, which in turn makes them more likely to move

11

The dissent does not dispute that under Gonzalez, the ultimate

question is one of fact. Dissent at 56 n.1. Yet, the dissent argues that the

district court’s assessment of the likelihood of success on the merits of this

ultimate question should be reviewed de novo because we are at the

preliminary injunction stage, and the question is a mixed question of law

and fact. See id. at 56–57 n.1. We disagree. Our conclusion that the clear

error standard applies in reviewing a trial court’s determination at the

merits stage is equally applicable at the preliminary injunction stage. See,

e.g., Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th Cir.

2014) (holding, in an appeal from an order denying a motion for a

preliminary injunction, that the clear error standard applies to the district

court’s determination concerning likelihood of confusion, a mixed

question of law and fact, because we had previously held that this standard

was applicable to such determinations at the merits stage).

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 27

than homeowners. Second, she argues that each of these

differences between minorities and non-minorities shows that

minorities must rely on ballot collection by third parties more

than non-minorities because minorities have less ability to

make use of other alternative means of voting (such as voting

by mail or in person). According to Feldman, this evidence

shows that the burdens of H.B. 2023 fall more heavily on

minorities than non-minorities. Feldman further contends

that she satisfied the second prong of the § 2 test by

introducing substantial evidence supporting eight of the nine

Senate Factors.

The district court rejected this argument at the first prong

of the § 2 test based on its determination that Feldman failed

to show that H.B. 2023 will cause protected minorities to

have less electoral opportunities than non-minorities. The

district court based its conclusion on both a per se legal rule

and on its review of the evidence. First, the district court held

that Feldman failed to provide any quantitative or statistical

data showing that H.B. 2023’s rule precluding the use of

certain third-party ballot collectors had a disparate impact on

minorities compared to the impact on non-minorities. The

district court determined that as a matter of law, such data

was necessary in order to establish a § 2 violation. Feldman

does not dispute that she did not provide any direct data on

the use of third-party ballot collectors,12 but argues such data

12

Feldman contends that her failure to adduce evidence that ballot

collection restrictions place a heavier burden on minorities than non-

minorities should be excused because Arizona failed to track how early

ballots are returned. As plaintiff, however, Feldman has the obligation of

carrying her burden of proof. See Gingles, 478 U.S. at 46. Moreover, the

record indicates that Feldman had equal ability to generate the required

data. Early ballots have been collected in Arizona since at least 2002, and

surveys could have determined the racial composition of voters who rely

28 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

is not necessary to show a disproportionate burden on

minorities, and so the district court’s ruling to the contrary

was legal error.

While § 2 itself does not require quantitative evidence,

past cases suggest that such evidence is typically necessary to

establish a disproportionate burden on minorities’ opportunity

to participate in the political process.13 See, e.g., Veasey v.

Abbott, 830 F.3d at 244 (noting that “courts regularly utilize

statistical analyses to discern whether a law has a

discriminatory impact”); Frank, 768 F.3d at 752; Gonzalez,

677 F.3d at 405–07. Indeed, we are unaware of a vote denial

case holding that a challenged practice placed a

disproportionate burden on a protected minority leading to

“less opportunity than other members of the electorate to

participate in the political process and to elect representatives

on others to collect their early ballot in Arizona. Moreover, the Arizona

Democratic Party admits that collecting early votes has been an “integral

part of the Arizona Democratic Party’s get-out-the-vote strategy” since at

least 2002. Neither the Arizona Democratic Party nor any other

organizational plaintiff has explained why it could not have compiled data

on the race of the voters utilizing ballot collection given that the

organizations collecting ballots appear to be in the best position to gather

such information.

13

The dissent appears to conflate the district court’s rule that

quantitative data is necessary to establish the first prong of a § 2 violation

with a rule that only actual post-election voting data can establish a § 2

violation. Dissent at 68. While the Third Circuit has suggested that

plaintiffs must prove that a challenged practice has an impact on minority

voter turnout, see Ortiz v. City of Phila. Office of City Comm’rs Voter

Registration Div., 28 F.3d 306, 314 (3d Cir. 1994), the district court did

not do so, and other circuits have evaluated pre-election challenges by

considering statistical evidence regarding voting registration, voter turnout

in prior elections, Ohio Democratic Party, 2016 WL 4437605, at *14, and

the possession of qualifying voter ID, Veasey v. Abbott, 830 F.3d at 250.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 29

of their choice” under § 2 without such quantitative or

statistical data. 52 U.S.C. § 10301(b).14 Notably, Feldman

did present statistical evidence in our companion case,

discussed supra n.5.

We need not resolve this legal issue, however, because

despite its ruling regarding the lack of statistical or

quantitative evidence, the district court proceeded to review

all the evidence in the record and rested its conclusion that

Feldman had failed to satisfy the first prong of § 2 on the

alternate ground that Feldman did not show that the burden of

H.B. 2023 impacted minorities more than non-minorities.

Deferring to “the district court’s superior fact-finding

capabilities,” Salt River, 109 F.3d at 591, we conclude that

this holding is not clearly erroneous.

To satisfy the first prong, Feldman adduced several

different categories of evidence, including individual

declarations, legislative history, and files from the

Department of Justice.

14

Feldman relies on two out-of-circuit vote dilution cases to support

her argument that statistical evidence is not required in the application of

the factors laid out in Gingles. See, e.g., Sanchez v. Colorado, 97 F.3d

1303, 1320–21 (10th Cir. 1996); Jenkins v. Red Clay Consol. Sch. Dist.

Bd. of Educ., 4 F.3d 1103, 1126 (3d Cir. 1993). But these cases indicate

only that when minority voters claim that racial bloc voting will defeat

their opportunity to elect a candidate of their choice, they may rely on a

range of evidence to prove that a particular candidate is the preferred

minority candidate. See Sanchez, 97 F.3d at 1320–21; Jenkins, 4 F.3d at

1126. Neither case addresses the evidence required to show that a practice

results in protected minorities having less opportunity to participate in the

political process than non-minorities. See League of Women Voters of

N.C., 769 F.3d at 240; Veasey v. Abbott, 830 F.3d at 244. As noted supra

n.10, different evidence may be required to prove a vote denial claim than

to prove a vote dilution claim.

30 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

First, the record includes the declarations of Arizona

Democratic lawmakers and representatives of organizations

that have collected and returned ballots in prior elections.

These declarations generally state that members of the

communities they have assisted rely on ballot collection

services by third parties. The district court discounted this

testimony because the declarants did not provide any

comparison between the minority communities and non-

minority communities. The record supports this finding. The

majority of the declarants focused their efforts and obtained

their experiences in minority communities.15 None of these

declarants compared the impact of H.B. 2023 on minorities

as compared to non-minorities. While two of the declarations

made conclusory statements that H.B. 2023

“disproportionately impacts” protected minorities, it is not

clear error for the district court to discount such statements,

where the declarant did not provide the basis for the

conclusion. Cf. Herb Reed Enters., LLC v. Fla. Entm’t

Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013) (indicating

15

For instance, Declarant Randy Parraz stated that his organization,

Citizens for a Better Arizona, “focuse[s] its get-out-the-vote efforts on

helping low-income Latino voters.” Ian Danley’s declaration states that

his non-partisan organization, One Arizona, typically engages with voters

in neighborhoods that are heavily Latino. Declarants Joseph Larios and

Ken Chapman work for the Center for Neighborhood Leadership, which

focuses its efforts in “low-income African American and Latino

neighborhoods.” The Arizona Democratic lawmakers who provided

declarations represent constituents who are predominately ethnic

minorities. For example, Representative Ruben Gallego “represent[s]

approximately 763,000 constituents, nearly 80% of whom are ethnic

minorities.” State Senator Martin Quezada “represent[s] approximately

213,000 constituents, nearly 80% of which are ethnic minorities.” Kate

Gallego, the Vice Mayor of the City of Phoenix, represents a district that

“is heavily Latino and has the highest percentage—15%—of African

Americans in any district in Phoenix.”

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 31

that a district court should not rely on “unsupported and

conclusory statements” when finding facts as part of a

preliminary injunction analysis).

Other declarations submitted to the district court stated

generally that ballot collection by third parties benefits

elderly voters, homebound voters, forgetful voters, undecided

voters, and voters from rural areas, but the court found no

evidence that these categories of voters were more likely to

be minorities than non-minorities. Again, this finding is not

clearly erroneous. For instance, the district court stated that

while Feldman had provided evidence that the rural

communities of Somerton and San Luis were 95.9% and

98.7% Hispanic or Latino and lacked home mail delivery, she

did not provide evidence about home mail delivery to non-

minorities who reside in the rural communities of Colorado

City, Fredonia, Quartzite, St. David, Star Valley, and

Wickenburg that are 99.5%, 89.1%, 92.5%, 92.1%, 91.4%,

and 90.5% white, respectively. Similarly, while the record

shows that the Tohono O’odham Nation lacks home mail

delivery service, Feldman does not point to evidence showing

that H.B. 2023 has a disproportionate impact on members of

the Tohono O’odham Nation compared to non-minorities

who also live in rural communities.16 The district court also

rejected Feldman’s argument that declarations provided by

16

The dissent emphasizes that the evidence regarding the lack of mail

delivery service to the Tohono O’odham Nation and the rural communities

of Somerton and San Luis was not contested. Dissent at 72. But the issue

is not whether minority voters have limited access to mail delivery

service; rather, the issue is whether due to H.B. 2023, minorities “have

less opportunity than other members of the electorate to participate in the

political process and to elect representatives of their choice.” 52 U.S.C.

§ 10301(b) (emphasis added). Without evidence regarding non-minorities,

the comparison required by § 2 cannot be made.

32 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

Sergio Arellano, President of the Tucson Chapter of the

Arizona Latino Republican Association, and Kevin Dang,

President of the Vietnamese Community of Arizona, admitted

that “minority voters disproportionately rely on ballot

collection.” The district court concluded that these

declarations indicated only that minorities are

disproportionately vulnerable to being taken advantage of by

ballot collectors because they often do not understand

English. This conclusion was not clear error.

In addition to the multiple declarations described above,

Feldman submitted legislative testimony from the debates on

H.B. 2023, showing that a number of lawmakers expressed

concerns that H.B. 2023 would impact minority communities,

rural communities, working families, and the elderly. This

evidence likewise failed to compare minority communities to

non-minority communities.

Finally, the district court considered the Department of

Justice’s files regarding its evaluation of S.B. 1412 (a prior

Arizona bill proposing ballot collection restrictions) for

purposes of determining whether the bill was entitled to

preclearance under § 5 of the Voting Rights Act.17 The file

17

At the time of S.B. 1412’s enactment, Arizona was still subject to

Section 5 of the Voting Rights Act, which required Arizona to receive

preclearance from the Department of Justice or a federal court convened

in the United States District Court for the District of Columbia before

implementing a new voting standard, practice, or procedure. 52 U.S.C.

§ 10304. The Arizona Attorney General submitted S.B. 1412 to the

Department of Justice for preclearance. The Department of Justice

requested additional information about S.B. 1412’s ballot collection

restrictions, but did not complete its evaluation of S.B. 1412 because the

Arizona legislature repealed the ballot-collection measure as a part of an

omnibus bill in 2012.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 33

contained summaries of telephone conversations between a

Department of Justice attorney and various individuals about

ballot collection practices in Arizona. None of these

summaries provide a comparison of the effect of S.B. 1412 on

minorities and non-minorities. Feldman claims that a

summary of a phone call with then-Arizona Elections

Director Amy Bjelland shows that Arizona legislators

targeted S.B. 1412 at Hispanic communities. The district

court, however, reasonably interpreted this phone summary

as stating that the impetus for S.B. 1412 was an accusation of

voter fraud in San Luis, a predominately Hispanic area in the

southern portion of Arizona, that S.B. 1412 was aimed at this

sort of fraud, and that in Bjelland’s view, voter fraud was

more prevalent at the border because individuals living closer

to the border are more impacted by corruption and voting

fraud claimed to exist in Mexico.

On appeal, Feldman argues that the district court erred

because it did not accept her multi-step argument that she met

the first prong of § 2 based on evidence that certain

socioeconomic circumstances disparately impact minorities,

and this disparate impact would combine with a lack of

certain third-party ballot collectors to lessen minorities’

opportunities in the political process. We reject this

argument. Feldman’s evidence of differences in the

socioeconomic situation of minorities and non-minorities

does not satisfy the first prong of the § 2 test because it does

not show that H.B. 2023 causes a protected minority group to

have less opportunity than other members of the electorate to

participate in the political process. See Gingles, 478 U.S. at

44 n.8. Proof of a causal connection between the challenged

voting practice and a prohibited result is “crucial,” Gonzalez,

677 F.3d at 405 (citing Salt River, 109 F.3d at 595), and

Feldman points to no evidence that the restriction on third-

34 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

party ballot collection causes minorities to have less

opportunity to vote than non-minorities. Indeed, although

H.B. 2023 was in effect for all but the first three days of early

voting for the Primary Election, the record does not include

any testimony by minority voters that their ability to

participate in the political process was affected by the

inability to use a third-party ballot collector. The district

court did not clearly err in declining to make the inference

urged by Feldman (i.e., that due to minorities’ socioeconomic

status, they were likely to have fewer opportunities than non-

minorities to participate in the political process if they could

not use certain third-party ballot collectors) in the absence of

evidence supporting that inference.

We rejected a similar argument in Gonzalez. As in this

case, the plaintiff in Gonzalez argued that a law requiring

prospective voters to obtain a photo identification before they

cast ballots at the polls violated § 2 because it had a

statistically significant disparate impact on Latino voters.

677 F.3d at 406. To support this argument, the plaintiff

presented evidence “of Arizona’s general history of

discrimination against Latinos and the existence of racially

polarized voting.” Id. at 407. Despite this general history of

discrimination, we affirmed the district court’s rejection of

this claim, because the plaintiff was unable to produce

evidence that the photo identification law caused minorities

to have less opportunity to participate in the political process.

Id.; see also Frank, 768 F.3d at 752–55 (holding that a photo

identification law which had a disparate impact on minorities

did not violate § 2 because plaintiffs failed to show that the

law had caused a discriminatory result). For the same reason,

Feldman’s evidence regarding the socioeconomic situation of

minorities is insufficient in the absence of evidence that

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 35

H.B. 2023 caused minorities to have less opportunity to

participate in the political process.

In short, the district court did not clearly err in concluding

that Feldman adduced no evidence showing that H.B. 2023

would have an impact on minorities different than the impact

on non-minorities, let alone that the impact would result in

less opportunity for minorities to participate in the political

process as compared to non-minorities.18 Because the court

found that Feldman’s § 2 claim failed at the first prong, as in

Gonzalez, the district court had no obligation to reach the

second prong, and therefore did not err in declining to

consider whether H.B. 2023 interacted with racial

discrimination to cause a discriminatory result. See 677 F.3d

at 407.19 The district court’s conclusion that H.B. 2023 did

not violate § 2 was not “(1) illogical, (2) implausible, or

(3) without support in inferences that may be drawn from the

facts in the record,” Hinkson, 585 F.3d at 1262 (internal

18

The dissent argues that once plaintiffs have established a burden on

minority voters, a “burden of rejoinder” should be placed on the state.

Dissent at 72–73. But § 2 requires more than merely showing a burden on

minorities. It requires plaintiffs to establish that minorities “have less

opportunity than other members of the electorate to participate in the

political process.” 52 U.S.C. § 10301. We have held that it is not enough

for the plaintiff to make “a bare statistical showing of disproportionate

impact on a racial minority”; rather, “Section 2 plaintiffs must show a

causal connection between the challenged voting practice and [a]

prohibited discriminatory result.” Salt River, 109 F.3d at 595 (second

emphasis added) (quoting Ortiz, 28 F.3d at 312); see also Fairley v.

Hattiesburg, 584 F.3d 660, 669 (5th Cir. 2009) (“[T]he plaintiffs bear the

burden of proof in a VRA case, and any lack of record evidence on VRA

violations is attributed to them.”).

19

We likewise do not consider the nine factors set forth in Gingles,

478 U.S. at 36–37.

36 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

quotation marks omitted). Therefore, we hold that the district

court did not abuse its discretion in finding Feldman was

unlikely to succeed on her Voting Rights Act claim.

B

Feldman also contends that the district court erred in

concluding that her facial challenge to H.B. 2023 on

constitutional grounds was unlikely to succeed on the merits.

We first lay out the analytical framework for facial challenges

to voting laws under the Fourteenth and First Amendments,

and then consider Feldman’s challenges.20

1

The Constitution grants the States a “broad power to

prescribe the ‘Times, Places and Manner of holding Elections

for Senators and Representatives.’” Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 451 (2008)

(quoting U.S. Const., art. 1, § 4, cl. 1). This power under the

Elections Clause to regulate elections for federal offices “is

matched by state control over the election process for state

offices.” Id. (quoting Clingman v. Beaver, 544 U.S. 581, 586

(2005)). “Governments necessarily ‘must play an active role

in structuring elections,’” Pub. Integrity All., Inc. v. City of

Tucson, — F.3d —, No. 15-16142, 2016 WL 4578366, at *3

(9th Cir. Sept. 2, 2016) (en banc) (quoting Burdick v.

20

The dissent contends that “neither the plaintiffs nor the defendants

categorize the challenge to H.B. 2023 as a facial challenge.” Dissent at 63

n.3. However, “[t]he label is not what matters.” John Doe No. 1 v. Reed,

561 U.S. 186, 194 (2010). Because Feldman’s “claim and the relief that

would follow—an injunction” barring Arizona from implementing and

enforcing H.B. 2023—“reach beyond the particular circumstances of these

plaintiffs,” id., it is properly characterized as a facial challenge.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 37

Takushi, 504 U.S. 428, 433 (1992)), and “as a practical

matter, there must be a substantial regulation of elections if

they are to be fair and honest and if some sort of order, rather

than chaos, is to accompany the democratic processes,”

Storer v. Brown, 415 U.S. 724, 730 (1974).

However, when a state exercises its power and discharges

its obligation “[t]o achieve these necessary objectives,” the

resulting laws “inevitably affect[]—at least to some

degree—the individual’s right to vote and his right to

associate with others for political ends.” Anderson v.

Celebrezze, 460 U.S. 780, 788 (1983). Therefore, the state’s

“power is not absolute, but is ‘subject to the limitation that

[it] may not be exercised in a way that violates . . . specific

provisions of the Constitution.’” Wash. State Grange,

552 U.S. at 451 (alterations in original) (quoting Williams,

393 U.S. at 29). While the Constitution does not expressly

guarantee the right to vote in state and federal elections, the

Fourteenth Amendment protects a citizen’s right “to

participate in elections on an equal basis with other citizens

in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336

(1972). That is, “once the franchise is granted to the

electorate, lines may not be drawn which are inconsistent

with the Equal Protection Clause of the Fourteenth

Amendment.” Harper v. Va. State Bd. of Elections, 383 U.S.

663, 665 (1966). Similarly, “[w]hile the freedom of

association is not explicitly set out in the [First]

Amendment,” Healy v. James, 408 U.S. 169, 181 (1972), “the

Court has recognized a right to associate for the purpose of

engaging in those activities protected by the First Amendment

. . . as an indispensable means of preserving other individual

liberties,” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).

This right includes the ability “to associate . . . for the

advancement of common political goals and ideas,” Timmons

38 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997), and

“the ability of citizens to band together in promoting among

the electorate candidates who espouse their political views,”

Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000).

The Supreme Court has long recognized that “some forms of

‘symbolic speech’ [are] deserving of First Amendment

protection.” Rumsfeld v. Forum for Acad. & Institutional

Rights, Inc., 547 U.S. 47, 65 (2006). However, First

Amendment protection extends “only to conduct that is

inherently expressive.” Id. at 66. Conduct is inherently

expressive if it “is intended to be communicative and . . . in

context, would reasonably be understood by the viewer to be

communicative.” Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288, 294 (1984). For instance, burning the

American flag, Texas v. Johnson, 491 U.S. 397, 406 (1989),

and wearing an unauthorized military medal, United States v.

Swisher, 811 F.3d 299, 314 (9th Cir. 2016) (en banc), are

expressive conduct within the scope of the First Amendment.

The Supreme Court has explained that constitutional

challenges to election laws “cannot be resolved by any

‘litmus-paper test’ that will separate valid from invalid

restrictions.” Anderson, 460 U.S. at 789. Rather, “a more

flexible standard applies.” Burdick, 504 U.S. at 434. “A

court considering a challenge to a state election law must

weigh [1] ‘the character and magnitude of the asserted injury

to the rights protected by the First and Fourteenth

Amendments that the plaintiff seeks to vindicate’ against

[2] ‘the precise interests put forward by the State as

justifications for the burden imposed by its rule,’ taking into

consideration [3] ‘the extent to which those interests make it

necessary to burden the plaintiff’s rights.’” Id. (quoting

Anderson, 460 U.S. at 789). This framework is generally

referred to as the Anderson/Burdick balancing test. In

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 39

applying this test, we: (1) identify and determine the

magnitude of the burden imposed on voters by the election

law; (2) identify the State’s justifications for the law; and

(3) weigh the burden against the State’s justifications. The

severity of the burden that an election law imposes “is a

factual question on which the plaintiff bears the burden of

proof.” Democratic Party of Haw. v. Nago, 833 F.3d 1119,

1122–24 (9th Cir. 2016) (citing Cal. Democratic Party,

530 U.S. 567); Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th

Cir. 2007) (noting that whether an election law imposes a

severe burden is an “intensely factual inquiry”).

“[T]he severity of the burden the election law imposes on

the plaintiff’s rights dictates the level of scrutiny applied by

the court.” Ariz. Libertarian Party v. Reagan, 798 F.3d 723,

729 (9th Cir. 2015) (quoting Nader v. Cronin, 620 F.3d 1214,

1217 (9th Cir. 2010) (per curiam)). “This is a sliding scale

test”: when the burden imposed is severe, not only the “more

compelling the state’s interest must be,” Ariz. Green Party v.

Reagan, — F.3d —, No. 14-15976, 2016 WL 5335037, at *4

(9th Cir. Sept. 23, 2016), but the regulation also “must be

‘narrowly drawn to advance a state interest of compelling

importance,’” Burdick, 504 U.S. at 434 (quoting Norman v.

Reed, 502 U.S. 279, 289 (1992)).

By contrast, “when a state election law provision imposes

only ‘reasonable, nondiscriminatory restrictions’ upon the

First and Fourteenth Amendment rights of voters, ‘the State’s

important regulatory interests are generally sufficient to

justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at

788) ; see also Ariz. Green Party, 2016 WL 5335037, at *4

(“[A] state may justify election regulations imposing a lesser

burden by demonstrating the state has important regulatory

interests.” (quoting Ariz. Libertarian Party, 798 F.3d at

40 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

729–30)). While Burdick does not call for rational basis

review, Pub. Integrity All., 2016 WL 4578366, at *4, it

likewise specifically declined to require that all voting

regulations be narrowly tailored and subjected to strict

scrutiny, see Burdick, 504 U.S. at 433. Rather, Burdick held

that when a statute imposes only a limited burden, the

“‘precise interests’ advanced by the State” alone may be

“sufficient to defeat [a plaintiff’s] facial challenge,”

Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203

(2008) (controlling opinion of Stevens, J.) (quoting Burdick,

504 U.S. at 434). See also Pub. Integrity All., 2016 WL

4578366, at *6 (upholding a municipal election law, even

though it was aimed at furthering the same interests as other

municipal ordinances, because it might have marginal impact

beyond that provided by other laws).

Finally, the Supreme Court has warned that facial

challenges “are best when infrequent,” Sabri v. United States,

541 U.S. 600, 608 (2004), and “are disfavored for several

reasons” in the election law context in particular, Wash. State

Grange, 552 U.S. at 450. For instance, Arizona “has had no

opportunity to implement [H.B. 2023], and its courts have

had no occasion to construe the law in the context of actual

disputes arising from the electoral context, or to accord the

law a limiting construction to avoid constitutional questions.”

Id. “Claims of facial invalidity often rest on speculation,”

and “raise the risk of ‘premature interpretation of statutes on

the basis of factually barebones records.’” Id. (quoting Sabri,

541 U.S. at 609). When faced with underdeveloped

“evidence regarding the practical consequences of

[H.B. 2023], we find ourselves in the position of Lady

Justice: blindfolded and stuck holding empty scales.” Ariz.

Green Party, 2016 WL 5335037, at *6 (quoting Ariz.

Libertarian Party, 798 F.3d at 736 (McKeown, J.,

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 41

concurring)). Accordingly, plaintiffs asserting a facial

challenge “bear a heavy burden of persuasion,” the magnitude

of which the Supreme Court has reminded us “to give

appropriate weight.” Crawford, 553 U.S. at 200.

2

We now turn to Feldman’s Fourteenth Amendment claim.

Feldman claims that the district court made a number of

errors in determining that she was unlikely to prevail on the

merits of her claim that H.B. 2023 imposes an undue burden

on Arizona voters that is not outweighed by the State’s

asserted interests.

Feldman first argues that the district court erred in its

application of the Anderson/Burdick framework. Under this

framework, a district court must first consider the burden

posed by H.B. 2023. Burdick, 504 U.S. at 434. In

considering this burden, we must take care to avoid the “sheer

speculation” that often accompanies the assessment of

burdens when considering facial challenges. Wash. State

Grange, 552 U.S. at 454; see also Chicanos Por La Causa,

Inc. v. Napolitano, 558 F.3d 856, 866 (9th Cir. 2008) (“In any

event, a speculative, hypothetical possibility does not provide

an adequate basis to sustain a facial challenge.”).

Here, the district court did not clearly err in finding that

H.B. 2023 did not “significantly increase the usual burdens of

voting.” As an initial matter, H.B. 2023 on its face imposes

less of a burden than the challenged law did in Crawford.

Crawford considered the impact of Indiana’s voter-ID law,

which required voters who lacked photo ID to sustain “the

inconvenience of making a trip to the [state Bureau of Motor

Vehicles], gathering the required documents, and posing for

42 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

a photograph” to obtain the requisite identification. 553 U.S.

at 198. In the alternative, a voter who could not or did not

want to obtain a photo ID could submit a provisional ballot

and “travel to the circuit court clerk’s office within 10 days

to execute the required affidavit” accompanying the

provisional ballot. Id. at 199. The Court found that the law

imposed “only a limited burden on voters’ rights.” Id. at 203

(quoting Burdick, 504 U.S. at 439); see id. at 209 (Scalia, J.,

concurring in the judgment).

Crawford’s finding of a limited burden compels a similar

conclusion here. While the Indiana photo ID law imposed an

affirmative requirement that voters possess photo ID in order

to vote, H.B. 2023 limited only one of several methods of

voting that Arizona law otherwise makes available: only

third-party ballot collectors who do not qualify under the

statute are precluded from delivering ballots. The district

court’s conclusion that the limitation of one alternative for

ballot collection does not “represent a significant increase

over the usual burdens of voting” is not clearly erroneous.

Crawford, 553 U.S. at 198; see Ohio Democratic Party, 2016

WL 4437605, at *6 (rejecting a challenge to Ohio’s

“withdrawal of the convenience of same-day registration” and

holding that the Constitution does not “require all states to

maximize voting convenience”).21

21

The dissent argues that because “80% of the electorate uses early

absentee voting,” it “has transcended convenience and has become instead

a practical necessity.” Dissent at 62. In doing so, the dissent elides the

distinction between early absentee voting in general and early absentee

voting through third-party ballot collection, the only practice restricted by

H.B. 2023. Feldman did not provide “concrete evidence,” Crawford,

553 U.S. at 201, of the number of voters who rely on this practice.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 43

Further, any burden imposed by H.B. 2023 is mitigated by

the availability of alternative means of voting. The lead

opinion in Crawford held that the burden imposed by

Indiana’s voter-ID law was “mitigated by the fact that, if

eligible, voters without photo identification may cast

provisional ballots,” even though doing so required a voter to

make two trips: the first to vote and the second to execute the

required affidavit. 553 U.S. at 199. Here, H.B. 2023 could

at most require that a voter make that first trip—to vote in the

first instance. Because making two trips does not represent

a burden “over the usual burdens of voting” in Crawford, id.

at 198, the district court could reasonably determine that the

single trip required here does not represent such a burden,

either. Although Feldman contends that “thousands” of

Arizona voters rely on third-party ballot collection in order to

cast their early ballots,” the record does not support her

additional claim that without ballot collection by third parties

disqualified by H.B. 2023, many Arizona voters “would not

have been able to vote in prior elections.”

Feldman also argues that the district court erred in failing

to consider the burdens imposed on specific groups of voters

for whom H.B. 2023 poses a more serious challenge. We

disagree, because the evidence in the record was insufficient

for such an analysis. While a court may consider a law’s

impact on subgroups, there must be sufficient evidence to

enable a court “to quantify the burden imposed on the

subgroup.” Pub. Integrity All., 2016 WL 4578366, at *3 n.2

(citing Crawford, 553 U.S. at 199–203; id. at 212–17 (Souter,

J., dissenting)); see also Ne. Ohio Coal. for the Homeless v.

Husted, — F.3d —, Nos. 16-3603, 16-3691, 2016 WL

4761326, at *11–12 (6th Cir. Sept. 13, 2016) (holding that

Crawford may permit “weighing the ‘special burden’ faced

by ‘a small number of voters’” when there is “quantifiable

44 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

evidence from which an arbiter could gauge the frequency

with which this narrow class of voters has been or will

become disenfranchised,” but that in the absence of such

evidence, a court should “consider the burden that the

provisions place on all . . . voters.” (quoting Crawford,

553 U.S. at 200)), reh’g en banc denied, — F.3d —, 2016

WL 5939925 (6th Cir. Oct. 6, 2016). In Crawford, the Court

acknowledged that the photo ID requirement placed “a

somewhat heavier burden . . . on a limited number of

persons,” but did not consider this burden because it was “not

possible to quantify either the magnitude of the burden on this

narrow class of voters or the portion of the burden imposed

on them that is fully justified.” 553 U.S. at 199–200.

Accordingly, the Court instead considered “the statute’s

broad application to all . . . voters.” Id. at 202–03 (quoting

Burdick, 504 U.S. at 439). Here, the record includes broad

assertions regarding the number of ballots previously

collected, but does not include sufficient “concrete evidence”

of “the number of registered voters” within specific groups or

evidence that permits weighing of the burden on these voters,

such as whether H.B. 2023 would merely inconvenience these

voters or preclude them from voting. Id. at 200–01. Given

the paucity of evidence regarding these key issues, the district

court did not err in declining to focus on the burden on

specific groups. See id. at 201–02. We conclude that the

district court did not clearly err in identifying and assessing

the burden imposed by H.B. 2023.

Because the district court did not clearly err in its

determination of the burden imposed by H.B. 2023 on the

right to vote, we proceed to the second step of the

Anderson/Burdick framework and consider Arizona’s

interests. Feldman does not dispute that Arizona’s interest in

preventing absentee-voting fraud and maintaining public

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 45

confidence in elections are “relevant and legitimate state

interests,” Crawford, 553 U.S. at 191, nor could she. “A

State indisputably has a compelling interest in preserving the

integrity of its election process.” Purcell, 549 U.S. at 4

(quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S.

214, 231 (1989)). “While the most effective method of

preventing election fraud may well be debatable, the

propriety of doing so is perfectly clear.” Crawford, 553 U.S.

at 196. Similarly, “public confidence in the integrity of the

electoral process has independent significance, because it

encourages citizen participation in the democratic process.”

Id. at 197. And as the district court correctly recognized,

absentee voting may be particularly susceptible to fraud, or at

least perceptions of it. See Crawford, 553 U.S. at 225

(Souter, J., dissenting); Griffin v. Roupas, 385 F.3d 1128,

1131 (7th Cir. 2004); see also United States v. Townsley,

843 F.2d 1070 (8th Cir. 1988). The district court did not err

in crediting Arizona’s important interest in preventing fraud

even in the absence of evidence that voter fraud had been a

significant problem in the past. In Crawford, the Court noted

that “[t]he record contains no evidence of any such fraud

actually occurring,” but nonetheless concluded that “not only

is the risk of voter fraud real but . . . it could affect the

outcome of a close election.” 553 U.S. at 194–96; see also

Ohio Democratic Party, 2016 WL 4437605, at *9; Frank,

768 F.3d at 749–50. Courts recognize that legislatures need

not restrict themselves to a reactive role: legislatures are

“permitted to respond to potential deficiencies in the electoral

process with foresight rather than reactively.” Munro v.

Socialist Workers Party, 479 U.S. 189, 195–96 (1986).

Feldman also contends that the district court made several

legal errors in assessing Arizona’s interests and in weighing

them against the burden on voters. First, Feldman argues that

46 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

the district court erred in holding that “laws that do not

significantly increase the usual burdens of voting do not raise

substantial constitutional concerns.” We disagree. It is

axiomatic that under a balancing test such as

Anderson/Burdick’s, less weight on one side of the scale

allows that scale to be more easily tipped in the other

direction. “[W]hen a state election law provision imposes

only ‘reasonable, nondiscriminatory restrictions’ upon the

First and Fourteenth Amendment rights of voters, ‘the State’s

important regulatory interests are generally sufficient to

justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting

Anderson, 460 U.S. at 788).

Second, Feldman argues that the district court failed to

consider the means-end fit between Arizona’s interests in

preventing absentee-voting fraud and eliminating the

perception of fraud on the one hand and the burdens imposed

on voters on the other hand. Relying on a vacated Sixth

Circuit opinion, see Ohio State Conference of the NAACP v.

Husted, 768 F.3d 524 (6th Cir. 2014), vacated, No. 14-3877,

2014 WL 10384647 (6th Cir. Oct. 1, 2014), Feldman argues

that Arizona was required to “explain why the particular

restriction imposed is actually necessary,” id. at 545. Again,

we disagree. The lead opinion in Crawford held that a

limited burden on voters’ rights imposed by the challenged

law was outweighed by two “unquestionably relevant”

interests offered by the state, without considering the fit

between those interests and the voter-ID law. See 553 U.S.

at 203. And as several of our sister circuits have recognized,

it is “practically self-evidently true” that implementing a

measure designed to prevent voter fraud would instill public

confidence. Ohio Democratic Party, 2016 WL 4437605, at

*9 (citing Crawford, 553 U.S. at 197); see Frank, 768 F.3d at

750 (noting that Crawford took “as almost self-evidently

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 47

true” the relationship between a measure taken to prevent

voter fraud and promoting voter confidence). By asserting its

interest in preventing election fraud and promoting public

confidence in elections, essentially the same interests as in

Crawford, Arizona bore its burden of establishing “important

regulatory interests” sufficient to justify the minimal burden

imposed by H.B. 2023. Accordingly, the district court could

reasonably conclude that Arizona’s means—restricting third-

party ballot collection—matched the desired ends of

preventing voter fraud and promoting voter confidence in the

electoral system.22

For similar reasons, we reject Feldman’s argument that

the district court erred in not considering whether Arizona’s

“goals could have been achieved through less burdensome

means.” Neither the Supreme Court nor we have required a

state to prove there is no less restrictive alternative when the

burden imposed is minimal. Burdick expressly declined to

require that restrictions imposing minimal burdens on voters’

rights be narrowly tailored. See 504 U.S. at 433. Consistent

with Burdick, we upheld in Public Integrity Alliance an

22

The dissent argues that “the state’s justification for the law was

weak” because it “could not identify a single example of voter fraud

caused by ballot collection.” Dissent at 62. But the record does contain

evidence of improprieties, such as ballot collectors impersonating

elections officials. Moreover, Arizona’s interest is not simply in

preventing fraud, but also in promoting public confidence in the electoral

system, and the record contains evidence from which the district court

could properly conclude, as Feldman’s expert conceded, that absentee

voting is particularly conducive to fraud. “[O]ccasional examples” of

fraud—as documented in the Arizona Republic article cited by the

dissent—“demonstrate that . . . the risk of voter fraud [is] real,” Crawford,

553 U.S. at 195–96. Courts, wisely, do not require “that a State’s political

system sustain some level of damage” before allowing “the legislature [to]

take corrective action.” Munro, 479 U.S. at 195.

48 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

election restriction (ward-based primary elections) that

furthered the interest of “ensuring local representation by and

geographic diversity among elected officials” by ensuring

that “the candidates nominated in a given ward actually have

the support of a majority of their party’s voters in that ward,”

even though other less-restrictive means such as candidate-

residency requirements could achieve the same broader

purpose. 2016 WL 4578366, at *5. Similarly, in Arizona

Green Party, we rejected the argument that the state must

“adopt a system that is the most efficient possible” such that

later deadlines could be set, in light of the “de minimis

burden” imposed by the existing deadlines. 2016 WL

5335037, at *7. As the district court found, H.B. 2023

establishes a chain-of-custody for absentee ballots that

furthers Arizona’s stated interests of reducing fraud and

promoting public confidence, even though other, less

restrictive, laws may achieve the same broader purpose.

In sum, we conclude that the district court did not clearly

err in finding that H.B. 2023 imposed a minimal burden on

voters’ Fourteenth Amendment right to vote, in finding that

Arizona asserted sufficiently weighty interests justifying the

limitation, and in ultimately concluding that Feldman failed

to establish that she was likely to succeed on the merits of her

Fourteenth Amendment challenge.

3

We next consider Feldman’s First Amendment claim.

According to Feldman, the district court undervalued the

expressive significance of ballot collection when it concluded

that she was unlikely to succeed on the merits of her First

Amendment freedom of association claim. Feldman contends

that through ballot collection, individuals and organizations

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 49

convey their support for the democratic process and for

particular candidates and political parties. For example,

declarant Ian Danley stated that his coalition, One Arizona,

helps its “voters ensure that their voices are heard on Election

Day” by “collecting and personally delivering their signed,

sealed early ballots.” Similarly, declarant Rebekah Friend

stated that under H.B. 2023, the Arizona State Federation of

Labor will have difficulty fulfilling its goal of encouraging its

members to register and vote because it “will no longer be

able to help its members or other voters vote by taking their

signed, sealed early ballots to the Recorder’s office.”

Therefore, Feldman argues, “ballot collectors convey that

voting is important not only with their words but with their

deeds.”

We first consider whether ballot collection is expressive

conduct protected under the First Amendment. See Clark,

468 U.S. at 293 n.5 (“[I]t is the obligation of the person

desiring to engage in assertedly expressive conduct to

demonstrate that the First Amendment even applies. To hold

otherwise would be to create a rule that all conduct is

presumptively expressive.”). We agree with the district court

that it is not. Even if ballot collectors intend to communicate

that voting is important, “[w]e cannot accept the view that an

apparently limitless variety of conduct can be labeled

‘speech’ whenever the person engaging in the conduct intends

thereby to express an idea.” United States v. O’Brien,

391 U.S. 367, 376 (1968). Unlike burning an American flag

or wearing a military medal, ballot collection does not convey

a message that “would reasonably be understood by the

viewer to be communicative.” Swisher, 811 F.3d at 311

(quoting Clark, 468 U.S. at 294). Rather, a viewer would

reasonably understand ballot collection to be a means of

facilitating voting, not a means of communicating a message.

50 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

See, e.g., Voting for Am., Inc. v. Steen, 732 F.3d 382, 392 (5th

Cir. 2013) (concluding that collecting and delivering voter

registration applications is “merely conduct” because “there

is nothing inherently expressive” about it).

While political organizations undoubtedly engage in

protected activities, ballot collection does not acquire First

Amendment protection merely because it is carried out along

with protected activities and speech. See Forum for Acad. &

Institutional Rights, Inc., 547 U.S. at 66 (concluding that

“combining speech and conduct” is not enough to create

expressive conduct); Voting for Am., 732 F.3d at 389 (“The

Court also has repeatedly explained that non-expressive

conduct does not acquire First Amendment protection

whenever it is combined with another activity that involves

protected speech.”). Because H.B. 2023 regulates only third-

party ballot collection, which is non-expressive conduct, the

district court did not err in concluding that H.B. 2023 does

not implicate the First Amendment.

Moreover, even if we assumed that H.B. 2023 implicates

the First Amendment, we agree with the district court’s

conclusion that Arizona’s regulatory interests in preventing

voter fraud justifies the minimal burden that H.B. 2023

imposes on associational rights under the Anderson/Burdick

test. Looking first at the burden imposed by H.B. 2023, the

district court did not clearly err in finding that H.B. 2023 does

not impose a severe burden. H.B. 2023 does not prevent

individuals and organizations from encouraging others to

vote, educating voters, helping voters register, helping voters

complete their early ballots, providing transportation to

voting sites or mailboxes, or promoting political candidates

and parties. Ariz. Rev. Stat. § 16-1005; see, e.g., Timmons,

520 U.S. at 361 (concluding that the burden a Minnesota law

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 51

imposed on a political party’s First and Fourteenth

Amendment rights was not severe because the party remained

“free to endorse whom it likes, to ally itself with others, to

nominate candidates for office, and to spread its message to

all who will listen”). H.B. 2023 does not prevent individuals

and organizations from associating “for the advancement of

common political goals and ideas,” Timmons, 520 U.S. at

357, or from “[banding] together in promoting among the

electorate candidates who espouse their political views,” Cal.

Democratic Party, 530 U.S. at 574.

Turning to Arizona’s regulatory interests, we conclude for

the reasons discussed supra at 44–45 that the district court did

not clearly err in finding that Arizona has important

regulatory interests in preventing voter fraud and maintaining

the integrity of the electoral process. Accordingly, the district

court could properly conclude that Arizona’s important

regulatory interests are sufficient to justify any minimal

burden on associational rights, as discussed supra at 46–47.

In sum, we conclude that ballot collection is not

expressive conduct implicating the First Amendment, but

even if it were, Arizona has an important regulatory interest

justifying the minimal burden that H.B. 2023 imposes on

freedom of association. The district court did not err in

concluding that the Feldman was unlikely to succeed on the

merits of her First Amendment claim.

IV

Having concluded that the district court did not err in

holding that Feldman failed to demonstrate a likelihood of

success on the merits, we briefly consider the remaining

equitable factors for issuing a preliminary injunction.

52 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

Because it is not likely that Feldman will suffer a violation of

her statutory or constitutional rights, she likely has “failed to

establish that irreparable harm will flow from a failure to

preliminarily enjoin defendants’ actions.” Hale v. Dep’t of

Energy, 806 F.2d 910, 918 (9th Cir. 1986).

Even if Feldman had raised serious questions as to the

merits of her claims, and also shown a likelihood of

irreparable harm, Winter, 555 U.S. at 22, relief would not be

warranted because Feldman has not shown that “the balance

of hardships tips sharply” in her favor or that an injunction is

in the public interest. All. for the Wild Rockies, 632 F.3d at

1135. This case is not one in which “qualified voters might

be turned away from the polls.” Purcell, 549 U.S. at 4.

Rather, it is one in which voters are precluded from giving

their ballots to third-party ballot collectors and organizations

must use an alternative means of mobilizing their voters. Cf.

Lair, 697 F.3d at 1215 (the existence of “other options for

engaging in political speech” militated in favor of staying an

injunction against enforcement of a state law restricting one

avenue of speech). Indeed, the district court found from the

evidence that many voters who entrust their ballots to

collectors do so merely for convenience, and we cannot

disturb this finding. See Hinkson, 585 F.3d at 1262 (noting

our deference to findings that are plausible and supported by

the record). The record does not establish that the

organizational plaintiffs’ need, in light of H.B. 2023, to

reallocate resources as part of a reconfigured get-out-the-vote

effort constitutes a substantial hardship.

The impact of H.B. 2023 on prospective voters, which the

district court found largely to be inconvenience, does not

outweigh the hardship on Arizona, which has a compelling

interest in the enforcement of its duly enacted laws. See Nken

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 53

v. Holder, 556 U.S. 418, 436 (2009) (recognizing the public

interest in the enforcement of the law); Veasey v. Perry,

769 F.3d at 895 (“When a statute is enjoined, the State

necessarily suffers the irreparable harm of denying the public

interest in the enforcement of its laws.”). As a general

matter, Arizona’s regulation of the early voting process

advances its interest in preserving ballot secrecy and

preventing “undue influence, fraud, ballot tampering, and

voter intimidation.” Miller, 179 Ariz. at 180. The interest in

preventing fraud is “compelling,” Purcell, 549 U.S. at 4, and

for Arizona no less than for Feldman, there are no “do over”

elections; “the State cannot run the election over again” with

the tools H.B. 2023 provides to combat possible fraud.

Veasey v. Perry, 769 F.3d at 896. On this record, then, the

balance cannot be said to tip “sharply” in Feldman’s favor.

All. for the Wild Rockies, 632 F.3d at 1135.

We turn finally to the public interest, an inquiry that

“primarily addresses impact on non-parties,” Bernhardt v.

Los Angeles County, 339 F.3d 920, 931 (9th Cir. 2003), but

that closely tracks Arizona’s own interests, see Nken,

556 U.S. at 435. Like Arizona itself, its citizens “have a deep

interest in fair elections.” Lair, 697 F.3d at 1215. Even in

the absence of actual fraud, the prospect of early voting fraud

may undermine public confidence in the results of the

election. Purcell, 549 U.S. at 4. At the very least, H.B. 2023

assists in exorcizing the specter of illegitimacy that may hang

over the electoral process in the minds of some citizens.

“Given the deep public interest in honest and fair elections”

as well as the “numerous available options” for voters to

submit ballots in Arizona consistent with H.B. 2023, Lair,

697 F.3d at 1215, removing H.B. 2023 from the State’s

regulatory toolbox in the middle of the voting period may

54 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

well do more harm to the perceived integrity and legitimacy

of the election than good.

Feldman is therefore not only unlikely to prevail on the

merits, but, as the district court concluded, her interest in

avoiding possible irreparable harm does not outweigh

Arizona’s and the public’s mutual interests in the

enforcement of H.B. 2023 pending final resolution of this

case. In reaching this conclusion, we heed the Supreme

Court’s admonition to consider the harms “specific to

election cases,” Purcell, 549 U.S. at 4, attendant on enjoining

the enforcement of a state’s voting law while it is currently in

play, and just weeks before an election.

AFFIRMED.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 55

THOMAS, Chief Judge, dissenting:

Arizona has criminalized one of the most popular and

effective methods by which minority voters cast their ballots.

Because this law violates the Constitution and the Voting

Rights Act, I must respectfully dissent.

I

Like most states, Arizona allows voters to cast a ballot on

election day at a polling place, or to cast an early absentee

vote, either in person or by mail. A.R.S. § 16-541. Early

voting has become increasingly popular in Arizona, as

evidenced by the fact that 81% of ballots cast in the last

Presidential election were cast by early voting, a 12%

increase from the 2012 election. An important reason for the

increase in early voting is that Arizona has substantially

reduced the number of polling places, resulting in

extraordinarily long lines, with voters waiting many hours to

cast their ballots. In one urban area, there is one voting center

for nearly 70,000 registered voters. In some precincts in

Maricopa County, voters waited for four hours to cast their

ballots in the Presidential Preference Primary election earlier

this year. In other precincts, the wait was up to six hours.

Compounding the problem is that, in Maricopa County in

particular, polling places change with each election, and the

County is using a different polling place system for the

general election than it did in the Presidential Preference

election earlier this year.

As the use of early voting has skyrocketed in Arizona,

voters have increasingly used friends, organizations, political

parties, and campaign workers to transmit their ballots. Some

efforts are typical of “get-out-the-vote” campaigns by

56 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

partisan groups; others are targeted to provide a service to

those who cannot get to the polls. Because of geographic and

other impediments to voting, voting by ballot collection has

become a critical means for minority voters to cast their

ballots. A substantial number of rural minority voters live in

areas without easy access to mail service. In urban areas,

many minority voters are socioeconomically disadvantaged,

meaning that they may lack reliable mail service and have to

rely on public transportation to get to polling places.

Nonetheless, Arizona enacted the law at issue, House Bill

2023, codified at A.R.S. § 16-1005 (H)–(I), which imposes

felony criminal sanctions for non-household members or

caregivers who collect early ballots from others. Plaintiffs

filed this lawsuit challenging the law under the Voting Rights

Act of 1965 and the First and Fourteenth Amendments to the

United States Constitution. The district court denied the

plaintiffs’ motion for a preliminary injunction, and this

interlocutory appeal followed.

We review the denial of a preliminary injunction for

abuse of discretion. All. for the Wild Rockies v. Cottrell,

632 F.3d 1127, 1131 (9th Cir. 2011). A district court abuses

its discretion if its analysis is premised on an inaccurate view

of the law. Pom Wonderful LLC v. Hubbard, 775 F.3d 1118,

1123 (9th Cir. 2014). In such instances, we review de novo

the legal premises underlying the preliminary injunction. Id.1

1

The majority believes the district court’s findings of fact are

reviewed by this Court for clear error because the district court has

superior fact-finding capabilities. Maj. Op. at 25. The majority also

believes a district court’s answer to the ultimate question–whether there

was a § 2 violation–is a finding of fact entitled to deference. The majority

cites Gonzales for that proposition. However, the district court did not

conduct any evidentiary hearings to resolve disputed factual issues, and

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 57

II

The district court erred in its analysis of the plaintiffs’

Fourteenth Amendment claims. First, it erroneously

employed a rational basis review standard, when the

appropriate standard was a “balancing and means-end fit

analysis.” Pub. Integrity All. v. City of Tucson, 2016 WL

4578366, at *3 (9th Cir. 2016) (en banc). As Public Integrity

Alliance recognized, the Supreme Court established the

appropriate standard of review for laws regulating the right to

vote in Burdick v. Takushi, 504 U.S. 428 (1992). As we

explained in Public Integrity Alliance:

Under Burdick’s balancing and means-end fit

framework, strict scrutiny is appropriate when

First or Fourteenth Amendment rights “are

subjected to ‘severe’ restrictions.” Id. (quoting

Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct.

698, 116 L.Ed.2d 711 (1992)). “But when a

state election law provision imposes only

‘reasonable, nondiscriminatory restrictions’

upon the First and Fourteenth Amendment

most of the record is undisputed, and the parties’ submissions were by

affidavit. Furthermore, the district court here did not determine whether

there was a § 2 violation because, unlike in Gonzales, we are not yet at the

merits stage of the inquiry. This is an appeal of a denial of a preliminary

injunction, so we are reviewing the district court’s determination that the

plaintiffs are unlikely to succeed on the merits of their claims. In my view,

the plaintiffs are likely to succeed on the merits and the district court

reached the opposite conclusion because it made errors of law. Therefore,

review is de novo as to those questions. Pom Wonderful LLC, 775 F.3d

at 1123. Most of the district court’s opinion involves a mixed question of

law and fact. In election cases, as with other appeals, we review such

decisions de novo. United States v. Blaine County, Montana, 363 F.3d

897, 909 (9th Cir. 2004).

58 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

rights of voters, ‘the State’s important

regulatory interests are generally sufficient to

justify’ the restrictions.” Id. (quoting

Anderson, 460 U.S. at 788, 103 S.Ct. 1564).

Pub. Integrity All., 2016 WL 4578366, at *3.

However, rather than reviewing H. B. 2023 under a

balancing and means-end fit analysis, the district court

conducted a rational basis review, committing legal error.2

The second, and more important legal error, was that the

district court misapplied the analysis required by Burdick and

Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). Under

Anderson-Burdick, the court must weigh the nature and

magnitude of the burden imposed by the law against the

2

The majority concludes that because Arizona’s regulatory interests

are sufficient to justify the “minimal burden” imposed by H.B. 2023, “the

district court was not required to conduct a means-end fit analysis here.”

Maj. Op. at 46–47. That is an erroneous interpretation of Supreme Court

and our precedent. “The Supreme Court delineated the appropriate

standard of review for laws regulating the right to vote in Burdick v.

Takushi[:]” it is a “balancing and means-end fit framework.” Pub.

Integrity All., 2016 WL 4578366, at *3. A court may not avoid

application of a means-end fit framework in favor of rational basis review

simply by concluding that the state’s regulatory interests justify the voting

burden imposed. Moreover, Burdick tells us that in weighing “the

character and magnitude of the asserted injury” against the “precise

interests put forward by the State as justifications for the burden imposed

by its rule,” we must take into consideration “the extent to which those

interests make it necessary to burden the plaintiff’s rights.” 504 U.S. at

434. In this case, the State’s asserted interest does not make necessary the

substantial burden on the voting rights of minorities. Simply put, the

State’s end does not fit the means employed.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 59

state’s interest and justification for it. Nader v. Brewer,

531 F.3d 1028, 1034 (9th Cir. 2008).

The burden of the law on Arizona minority voters is

substantial and occurs in both urban and rural areas of the

state. The uncontradicted evidence presented to the district

court showed that a substantial number of minority voters

used ballot collection as their means of voting. As Maricopa

Board of Supervisors Steve Gallardo testified: “ballot

collectors are used in large part by Latino and Native

American groups and [ballot collecting] has come to be

critical in enabling voters in those communities to exercise

their fundamental right to vote.”

The record demonstrated that, in many rural areas with a

high proportion of minority voters, home mail delivery was

not available, and it was extremely difficult to travel to a post

office. No one contested the fact that the rural communities

of Somerton and San Luis, which are comprised of 95.9% and

98.7% Hispanic voters, respectively, were without home mail

delivery and reliable transportation. As the representative for

that district testified, “[b]ecause many of these voters are

elderly and have mobility challenges, it is a common practice

in this area to have one neighbor pick up and drop off mail

for others on their street as a neighborly service.” The

representative noted that there is only one post office, which

is located across a highway crowded with cars waiting to

cross the border, and is virtually inaccessible by foot.

Another example of the impact of the law on minority

voters is the Tohono O’odham Indian Nation. The Tohono

O’odham reservation constitutes over 2.8 million acres in the

Sonoran desert. It is an area larger than Rhode Island and

Delaware, and approximates the size of Connecticut. It has

60 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

about 14,000 registered voters. It does not have home mail

delivery. It has one post office, which is over 40 miles away

from many residents. The evidence in this case shows that

restrictions on ballot collection affect the Tohono O’odham

tribe significantly. No one contested the fact that the

members of the Tohono O’odham Indian Nation have limited

access to a postal service and no home mail delivery.

Similarly, no one disputed that members of the Cocopah

Indian Tribe do not have home mail delivery or easy access

to a post office. The Cocopah Reservation is located along

the lower Colorado River, south of Yuma, Arizona. The

Cocopah Reservation comprises approximately 6,500 acres,

with approximately 1,000 tribal members who live and work

on or near the Reservation.

As to urban areas, record evidence demonstrated that the

burden of the law affected minority voters the most because

of socioeconomic factors. Minority voters in urban areas

were more likely to be economically disadvantaged. The

record showed that many minority urban voters lived in

places with insecure mail delivery; that many minority urban

voters were dependent upon public transportation, which

made election day in-person voting difficult; that many

minority voters worked several jobs, making it difficult to

take time off work to vote in person; and that many infirm

minority voters did not have access to caregivers or family

who could transmit ballots.

Martin Quezada, State Senator for Arizona’s Twenty-

Ninth Senate District testified that:

I represent approximately 213,000

constituents, nearly 80% of which are ethnic

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 61

minorities. In particular, Hispanic citizens

comprise 67% of the population of my

district, the highest percentage of any district

in the state of Arizona. My district is a

working-class community, and many of my

constituents depend on public transportation.

[ . . . ] Many of my constituents were severely

burdened by the long lines and lack of polling

locations in the 2016 presidential preference

election. My entire district only had one vote

center, in Maryvale, to service the nearly

70,000 registered voters . . . .

The President of a nonprofit organization comprised of

Latino citizens and community leaders testified that many

minorities required assistance in making sure that they were

following the proper voting procedure, and in low income

areas they were concerned about the security of their

mailboxes.

Further complicating voting in Arizona’s urban areas is

that there are not only few places to vote, but that the polling

locations change frequently. Indeed, because the City of

Phoenix elections are run independently by the City, a voter

might have to go to two different polling places to cast ballots

on election day. According to the Executive Director of a

nonprofit organization working primarily in low-income

African-American and Latino neighborhoods, this confusion

significantly burdened those communities because many

minorities had difficulty navigating the voting process,

especially those Spanish-speaking voters who were not also

fluent in English. The record also showed that election

administrators were prone to make errors with Spanish-

language materials. Those voters encounter significant

62 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

hurdles at polling places. Thus, the opportunity for early

voting is especially important for those citizens.

The district court and the State dismiss the burdens

imposed on minority voters seeking to vote early as attacks

on a process that provides only a “more convenient” means

of voting. However, when 80% of the electorate uses early

absentee voting as the method by which they cast their

ballots, the method has transcended convenience and has

become instead a practical necessity. Thus, when severe

burdens are placed on this form of voting, it has a significant

impact on elections and the right to vote.

Against this burden, the state’s justification for the law

was weak. The state identified its interest as preventing voter

fraud. However, the sponsors of the legislation could not

identify a single example of voter fraud caused by ballot

collection. Not one. Nor is there a single example in the

record of this case. The primary proponent of the legislation

admitted there were no examples of such fraud, but that the

legislation was based on the speculative theory that fraud

could occur. A study by the Arizona Republic found that, out

of millions of ballots cast from 2005 to 2013, there were only

34 cases of fraud prosecution. All involved voting by felons

or non-citizens. None involved any allegation of fraud in

ballot collection. And none of the cases resulted in a

conviction. A study by the National Republican Lawyers

Association, which was dedicated to finding voter fraud and

investigated evidence of potential fraud between 2000 and

2011, uncovered no example of fraud resulting from the

collection and delivery of early ballots in Arizona. A follow-

up analysis through May of 2015 failed to uncover any

examples of ballot collection fraud. The plaintiffs produced

numerous affidavits that attested that no one associated with

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 63

ballot collection had ever witnessed any voter fraud. Further,

the record indicated that there are effective processes in place

to handle any ballot that exhibits any signs that tampering has

occurred. The Director of Elections for Maricopa County, the

most populated county in Arizona, with a population of four

times the next most populated county, testified at the

legislative hearings that the County was well equipped to deal

with voter fraud. Under state election procedure, voters can

check the status of their ballot at any time. In short, the

specter of voter fraud by ballot collection is much like the

vaunted opening of Al Capone’s vault: there is simply

nothing there.

Thus, when one balances the serious burdens placed on

minorities by the law against the extremely weak justification

offered by the state, one can only conclude under the

Anderson-Burdick analysis that the plaintiffs have established

a likelihood of success on the merits of their Fourteenth

Amendment claim.3 Based on the mostly uncontroverted

3

The majority asserts that plaintiffs in this case are bringing a facial

challenge to H.B. 2023 and they therefore bear a “heavy burden of

persuasion” because such challenges “raise the risk of premature

interpretation of statutes.” Maj. Op. at 40–41 (internal quotations

omitted). It is worth noting that neither the plaintiffs nor the defendants

categorize the challenge to H.B. 2023 as a facial challenge; only the

majority opinion does so. It is also worth noting that securing a court’s

interpretation of the effects of H.B. 2023 before the law is enforced is the

point of seeking a preliminary injunction. But for my part, I think this is

a distinction without a difference because “[t]he underlying constitutional

standard [in an as applied challenge] . . . is no different th[a]n in a facial

challenge.” Legal Aid Servs. of Or. v. Legal Servs. Corp., 608 F.3d 1084,

1096 (9th Cir. 2010) (quoting Velazquez v. Legal Servs. Corp., 462 F.3d

219, 228 (2d Cir. 2006)). “Facial and as-applied challenges differ in the

extent to which the invalidity of a statute need be demonstrated (facial, in

all applications; as-applied, in a personal application). Invariant, however,

64 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

record, the district court erred in misapplying Anderson-

Burdick.4

III

The district court also erred in denying the motion for a

preliminary injunction based on the Voting Rights Act

claims. The Voting Rights Act of 1965 “was designed by

Congress to banish the blight of racial discrimination in

voting, which has infected the electoral process in parts of our

country for nearly a century.” State of S.C. v. Katzenbach,

383 U.S. 301, 308 (1966) abrogated by Shelby Cty., Ala. v.

Holder, __ U.S. __, 133 S. Ct. 2612 (2013). The Act

“implemented Congress’ firm intention to rid the country of

racial discrimination in voting. It provided stringent new

remedies against those practices which have most frequently

denied citizens the right to vote on the basis of their race.”

Allen v. State Bd. of Elections, 393 U.S. 544, 548 (1969).

The central purpose of the Act was “[t]o enforce the

fifteenth amendment to the Constitution of the United States.”

Chisom v. Roemer, 501 U.S. 380, 383 (1991) (quoting Pub.L.

89–110, 79 Stat. 437, 42 U.S.C. § 1973 et seq.). The

is the substantive rule of law to be used. In other words, how one must

demonstrate the statute’s invalidity remains the same for both types of

challenges, namely, by showing that a specific rule of law, usually a

constitutional rule of law, invalidates the statute, whether in a personal

application or to all.” Velazquez, 462 F.3d at 228 (emphasis in original).

4

Plaintiffs assert an additional Constitutional claim under the First

Amendment. In my view, the district court erred in concluding that H. B.

2023 did not burden their First Amendment associational rights.

However, in my view, the district court did not abuse its discretion in

denying a preliminary injunction based on this independent claim.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 65

Fifteenth Amendment provides that “[t]he right of citizens of

the United States to vote shall not be denied or abridged by

the United States or by any State on account of race, color, or

previous condition of servitude.” U.S. Const. amend. XV,

§ 1.

At issue in this case is § 2 of the Act, which is “a

restatement of the Fifteenth Amendment.” Roemer, 501 U.S.

at 392. Section 2 provides, without limitation, that any voting

qualification that denies citizens the right to vote in a

discriminatory manner violates the Voting Rights Act.

42 U.S.C. § 1973; see also Allen, 393 U.S. at 566–67 (noting

that Congress intentionally chose the expansive language

“voting qualifications or prerequisite to voting, or standard,

practice, or procedure” for § 2 so as to be “all-inclusive of

any kind of practice” that might be used by states to deny

citizens the right to vote (internal quotation marks omitted)).

As amended in 1982, § 2 makes “clear that certain practices

and procedures that result in the denial or abridgment of the

right to vote are forbidden even though the absence of proof

of discriminatory intent protects them from constitutional

challenge.” Roemer, 501 U.S. at 383–84.

To succeed on a § 2 claim, a plaintiff must show (1) that

“the challenged standard, practice, or procedure must impose

a discriminatory burden on members of a protected class,

meaning that members of the protected class have less

opportunity than other members of the electorate to

participate in the political process and to elect representatives

of their choice” 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

66 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

quotations omitted); see also Veasey v. Abbott, 830 F.3d 216,

244 (5th Cir. 2016).

The district court made a number of legal errors in its

analysis of the § 2 claims, warranting reversal.

A

The district court erred in holding, as a matter of law, that

§ 2 requires proof of the disparate impact of a law by

“quantitative or statistical evidence comparing the proportion

of minority versus white voters who rely on others to collect

their early ballots.” As the State concedes, there is no case

law supporting this requirement; the district court relied only

on cases it thought “strongly suggested” it.

Although quantitative or statistical measures of

comparing minority and white voting patterns certainly may

provide important analytic evidence, the district court erred

in concluding that they were the exclusive means of proof.

Indeed, the district court’s conclusion is belied by the words

of the Voting Rights Act itself, which provides that a

violation of § 2 is “based on the totality of the

circumstances.” 52 U.S.C. § 10301(b) (emphasis added).

The statute requires evidence that members of the affected

minority class “have less opportunity than other members of

the electorate to participate in the political process and to

elect representatives of their choice.” Id. (emphasis added).

The statutory criterion is incompatible with the district

court’s restriction of proof to quantitative denial of actual

minority voting compared with white voting. The relevant

question is whether the challenged practice, viewed in the

totality of the circumstances, places a disproportionate

burden on the opportunities of minorities to vote. Veasy,

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 67

830 F.3d at 244–45; League of Women Voters, 769 F.3d at

240. Even when analyzing the second part of the § 2 test,

which does require causality, statistical analyses are not the

exclusive method of showing a violation.5 Veasy, 830 F.3d

244. Indeed, the Supreme Court has eschewed that approach

in favor of consideration of various factors. Gingles,

478 U.S. at 44–45. Rather than narrowly interpreting the

Voting Rights Act, the Supreme Court has emphasized its

“broad remedial purpose of rid[ding] the country of racial

discrimination in voting” and has explained that it provided

“the broadest possible scope in combating racial

discrimination.” Roemer, 501 U.S. at 403. The district

court’s mechanical formulation is also at odds with the

“totality of the circumstances” approach we underscored in

Gonzales v. Arizona, 677 F.3d 383, 406 (9th Cir. 2012). The

district court’s restriction constitutes legal error.

Even if we leave aside the irreconcilable conflict between

the district court’s proposed rule and the requirements of the

5

The majority opines that “[w]hile § 2 itself does not require

quantitative evidence, past cases suggest that such evidence is typically

necessary to establish a disproportionate burden.” Maj. Op. at 28. The

majority also notes that plaintiffs’ briefs rely on vote dilution cases but not

vote denial cases in arguing that statistical evidence is not required to

establish a § 2 violation. Maj. Op. at 29 fn. 14. I perceive no reason why

the type of § 2 case on which plaintiffs rely is of consequence to their

argument about what § 2 itself requires. Likely plaintiffs could not rely

on a vote denial case for the stated proposition because of the practical

reality that in a vote denial case, quantitative evidence of the effect of a

rule on voting behavior is only available after an election has occurred, at

which point the remedial purpose of the Voting Rights Act is no longer

served. Plaintiffs in vote dilution cases, in contrast, can often gather and

analyze quantitative data before an election. See, e.g., Thornburg v.

Gingles, 478 U.S. 30 (1986).

68 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

governing statute, the district’s approach is still fatally

flawed.

First, quantitative measurement of the effect of a rule on

the voting behavior of different demographic populations

must necessarily occur after the election. One cannot

statistically test the real world effect of a rule in the abstract;

it can only be measured by actual voting data. In other

words, imposition of the district court’s proposed rule would

mean that there could never be a successful pre-election

challenge of the burdens placed on minority voting

opportunity because no data will have been generated or

collected. The analysis could only occur after the harm had

been inflicted. That result cannot be squared with the broad

remedial purposes of the Voting Rights Act. The Fifth

Circuit, in rejecting an approach similar to the district court’s,

acknowledged this problem, observing that requiring such

proof would “present[] problems for pre-election challenges

. . . when no such data is yet available.” Veasey, 830 F.3d at

260.

Second, the relevant data is not available in Arizona. The

State concedes that it does not collect the necessary data, and

asserts that it should not bear that burden in the absence of a

law that requires it to do so. The State suggests that plaintiffs

should use data from those organizations who collect ballots.

Of course, that action would now be a felony. But leaving

that aside, there would be no practical way for the plaintiffs

to collect comparative data by that method because it is

highly unlikely they could force competing organizational

groups to collect and supply the data. And such a method

would not likely yield true comparative results. At best, it

would show that white voters and minority voters both have

used ballot collection as a means for casting their ballots. No

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 69

one disputes that, nor does anyone seriously dispute the fact

that minority citizens are especially dependent on ballot

collection has a means of voting. Further, even if past data

were available, it still would not answer the district court’s

query because the data gathered would be pre-rule, and

therefore not relevant as a means of assessing the rule’s

impact.

Third, the district court acknowledged the difficulty of

obtaining the data because “election and other public records

often do not include racial or ethnic data,” and noted that

“[t]here is no getting around this problem.” Nonetheless, the

court held that the statute still required a threshold statistical

showing, even though collecting such evidence was likely

impossible. That was not the intent of the Voting Rights Act,

and it is just such a circumstance that requires assessment of

the “totality of the circumstances.”

Fourth, in its examination of the plaintiffs’ evidence, the

district court erred in its comparative analysis. It faulted the

plaintiffs for not showing comparative data from other rural

white-centric areas. But that is not the examination required

by the Voting Rights Act. Section 2 examines whether

“members of the protected class have less opportunity than

other members of the electorate to participate in the political

process and to elect representatives of their choice.” Veasey,

830 F.3d at 305; League of Women Voters of N.C., 769 F.3d

at 240 (emphasis added). It does not test opportunity against

“other members of the electorate” who are “similarly

situated.” Thus, contrary to the district court’s analysis, the

comparison is not with similarly situated white groups, but

rather with the voting population as a whole. If the district

court’s assumption were correct, then literacy and poll tax

statutes would be constitutional because they placed the

70 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

burdens on illiterate and poor whites and blacks equally.

Instead, the Voting Rights Act focuses on the burdens

disproportionately place on minorities in comparison with the

general voting population. Native American voters living on

reservations have different burdens as to transportation and

mail access than urban white voters. A state may not evade

the requirements of § 2 by arguing that it equally applies to a

subset of white voters constituting a minuscule percentage of

the white vote, when the overall effect is the suppression

minority voting.

And even if we were to take the district court’s analysis

at face value, it fails in consideration of the evidence in this

case. The district court’s conclusion is at odds with the

evidence showing the law disproportionately burdens

minorities. I have previously described the situation faced by

the Tohono O’odham Nation, situated on 2.8 million acres,

with limited access to a post office and no home mail

delivery. Everyone concedes that there is no white

population analogue. There are no white reservations in

Arizona. There is no comparably sized rural area that

encompasses a white-majority population. The record

evidence was plain and uncontroverted: H.B. 2023 places a

disproportionate burden on the voting opportunities of

members of the Tohono O’odham tribe in comparison with

the population of white voters.

The evidence provided by the plaintiffs showed a similar

pattern in urban areas. Minority voters encountered

significant burdens in exercising their right to vote. The

reduced number of polling places meant that voters had to

wait hours in line to cast ballots. Low income voters had

difficulty getting to the polls because of their dependence on

public transportation. Voters who were not fluent in English

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 71

had difficulty determining where to vote. Statistical evidence

is not needed to see that without ballot collecting, these voters

will have less opportunity than other members of the

electorate to participate in the political process.

In sum, the district court committed legal error by

requiring the plaintiffs to show proof of the disparate impact

of the law by “quantitative or statistical evidence comparing

the proportion of minority versus white voters who rely on

others to collect their early ballots.” That formulation is at

odds with the governing statute, which requires analysis by

“totality of the circumstances” of whether members of the

affected minority class “have less opportunity than other

members of the electorate to participate in the political

process and to elect representatives of their choice.”

52 U.S.C. § 10301(b).

B

The district court also erred as a matter of law in its

assessment of the plaintiffs’ burden of proof. “[T]he burden

of proof at the preliminary injunction phase tracks the burden

of proof at trial . . . .” Thalheimer v. City of San Diego,

645 F.3d 1109, 1116 (9th Cir. 2011). In a voting rights case,

the plaintiff bears the burden of proof at trial and must show

a violation by a preponderance of the evidence. Bartlett v.

Strickland, 556 U.S. 1, 19–20 (2009). Thus, the parties

seeking a preliminary injunction in this case must show they

are likely to prevail on the merits; if the plaintiffs satisfy that

burden, then the opposing parties bear the burden of

rejoinder. Thalheimer, 645 F.3d at 1116.

Here, the district court rejected plaintiffs’ tendered

evidence because it was not “compelling.” At the preliminary

72 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

injunction stage, the plaintiff is not required to present

“compelling” evidence, but only to establish a likelihood of

success by a preponderance of the evidence. The district

court also rejected the tendered evidence as “anecdotal,” but

the Supreme Court has considered and credited just such

evidence. At the preliminary injunction stage, plaintiffs were

obligated to show a likelihood of success in showing that

“members of the protected class have less opportunity than

other members of the electorate to participate in the political

process and to elect representatives of their choice.”

Much of the evidence tendered by the plaintiffs as to this

burden was not controverted. As I have noted, no one

contested the fact that the rural communities of Somerton and

San Luis, which are comprised of 95.9% and 98.7% Hispanic

voters, respectively, were without home mail delivery and

reliable transportation. No one contested the fact that the

members of the Tohono O’odham Indian Nation do not have

home mail delivery. No one disputed that members of the

Cocopah Indian Nation do not have home mail delivery. The

plaintiffs submitted voluminous affidavits showing the

burden that the restriction on ballot collection would impose

on minorities. The State did not contest the affidavits, but

simply dismissed the evidence as “anecdotal.” Thus, much of

the evidence tendered by the plaintiffs as to the

disproportionate burden on minority voters was either

completely undisputed or uncontested.

However, once the plaintiffs had established the burden

on minority voters, the district court did not place the burden

of rejoinder on the State. Rather, it categorically rejected

evidence based on personal knowledge as “anecdotal,” and

held that the plaintiffs were required to show that rural white

voters were not similarly burdened. In other words, once the

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 73

plaintiffs had established the burden on minority voters, the

district court imposed a higher standard of proof, rather than

shifting the burden of rejoinder to the State. The record

provides no information as to rural white voters. The district

court viewed that as fatal to the plaintiffs’ claims. In fact, it

meant that the plaintiffs had satisfied their threshold

requirements, and the State had failed to rejoin. The district

court erred in holding the plaintiffs to a higher evidentiary

burden.

C

The district court did not reach the second prong of the

§ 2 analysis, namely, whether the burden was in part caused

by or linked to social and historical conditions that have or

currently produce discrimination against members of the

protected class. Nevertheless, the plaintiffs established a

likelihood of success on the second prong.

As to the second part of the analysis, the Supreme Court

has identified several factors to be taken into consideration,

consistent with the legislative history of the Voting Rights

Act, namely:

(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;

74 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

(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 37. In addition, the Court added that in

some cases, there was probative value in inquiring “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

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 75

procedure is tenuous.” Id. (citing S. Rep., at 28–29,

U.S.Code Cong. & Admin. News 1982, pp. 206–207).

As to the first factor, 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, Arizona has had a long history of imposing burdens

on minority voters. In 1912, shortly after gaining statehood,

Arizona imposed a literacy test for voting. In Cochise and

Pima Counties, the denial of the right to vote meant that

nearly half the precincts lacked enough voters to justify

holding primary elections in 1912. From 1912 to the early

1960s, election registrars applied the literacy test to reduce

the ability of African Americans, Native Americans, and

Hispanics to register to vote. In an action filed against

Arizona to enforce the Voting Rights Act, the United States

Justice Department estimated that 73,000 people could not

vote because of the existence of the literacy test.

The passage of the Voting Rights Act in 1965 caused the

suspension of the literacy test in Arizona, but the statute

remained in effect until it was repealed in 1972, after

Congress banned its use in 1970 through an amendment to the

Voting Rights Act. Arizona subsequently unsuccessfully

challenged the Congressional ban on literacy tests. Oregon

v. Mitchell, 400 U.S. 112, 118 (1970). In Mitchell, the Court

noted that, in Arizona, only two counties out of eight with

Hispanic populations in excess of 15% showed voter

registration equal to the state-wide average. Id. at 132. In the

1960s, there were a number of initiatives to discourage

minority voting in Arizona, such as “Operation Eagle Eye.”

Under Operation Eagle Eye, minority voters were challenged

at the pools on a variety of pretexts, with the goal of

76 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

preventing minority voting or slowing down the process to

create long lines at the polls and discourage voting.

Native Americans in Arizona especially suffered from

voting restrictions. Although Native Americans were U.S.

citizens, the Arizona Supreme Court held in 1928 that they

could not vote because they were under federal guardianship.

Porter v. Hall, 271 P. 411, 419 (Ariz. 1928). Even after that

ban was overruled in 1948 in Harrison v. Laveen, 196 P.2d

456 (Ariz. 1948), Native Americans faced significant

obstacles to voting. See generally, Patty Ferguson-Bohnee,

The History of Indian Voting Rights in Arizona: Overcoming

Decades of Voter Suppression, 47 Ariz. St. L. J. 1099, 1112

(2015).

Because of its long history of imposing burdens on

minority voting, Arizona became one of nine states subject to

the pre-clearance requirements of the Voting Rights Act after

it was amended in 1975 to protect language minorities.

40 Fed. Reg. 43746. Under the pre-clearance provision,

Arizona was required to obtain the approval of the United

States Department of Justice before implementing any law

affecting the voting rights and representations of minorities.

Since 1982, the Department of Justice has vetoed four

statewide redistricting plans proposed by Arizona that

appeared to discriminate against minorities. When Arizona

was subject to the pre-clearance requirements of § 5, a bill

precluding or criminalizing ballot collection passed the

Arizona legislature, but was ultimately repealed due to

concerns about Justice Department approval. In 2013, the

Arizona legislature passed a measure banning partisan ballot

collection, the violation of which was a misdemeanor. It was

repealed after its repeal was placed on the ballot by

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 77

referendum. The plaintiffs established a likelihood of success

as to the first factor.

As to the second factor, the extent to which voting in the

elections of the state or political subdivision is racially

polarized, Arizona has had a history of racially polarized

voting. The plaintiffs provided expert testimony detailing the

history of polarized voting. Statistical analysis showed the

sharp polarization between white and non-white voters.

For the reasons described in the discussion of factor one,

the plaintiffs demonstrated a likelihood of success as to factor

three, namely, 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.

Because the voting access issues affect the right to vote

for a candidate, the fourth factor concerning the candidate

slating process is not relevant.

The fifth factor, 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, falls decisively

in favor of the plaintiffs. The plaintiffs tendered significant

evidence showing that Arizona minorities suffered in

education and employment opportunities, with disparate

poverty rates, depressed wages, higher levels of

unemployment, lower educational attainment, less access to

transportation, residential transiency, and poorer health.

78 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

The plaintiffs also provided substantial evidence as to the

sixth factor, namely, whether political campaigns have been

characterized by overt or subtle racial appeals.

Finally, the plaintiffs provided evidence supporting the

seventh Gingles factor, namely, the extent to which members

of the minority group have been elected to public office in the

jurisdiction. As of January 2016, Hispanics constituted over

30% of the population, but held only 19% of the seats in the

Arizona legislature. African-Americans made up 4.7% of the

population, but held 1% of the legislative seats. Native

Americans fared slightly better, constituting 5.3% of the

population and holding 4.4% of the legislative seats.

But the Gingles factors are not the end of the story. We

are obligated to look to the “totality of the circumstances.”

52 U.S.C. § 10301(b). In this election, in-person voting

opportunities are significantly hindered by lack of polling

places and significant changes in polling places, all of which

have caused extraordinarily long lines for voting in person, up

to six hours in some locations. This hindrance to in-person

voting falls most heavily on minorities. So, the cited

“opportunities” for alternate voting are illusory. H. B. 2023

has now imposed additional significant burdens on minorities

as to their ability to cast their ballots early through the

popular means of ballot collection. The totality of the

circumstances of this election, coupled with the historic

discrimination in Arizona’s electoral politics are sufficient to

satisfy the second § 2 requirement. In sum, the plaintiffs

established a likelihood of success in proving the Gingles

factors at stage two of the § 2 analysis.

FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 79

D

The plaintiffs established a likelihood of success on the

§ 2 Voting Rights Act claim. They established that the

criminalization of ballot collection meant that minority voters

had less opportunity than other members of the electorate to

elect representatives of their choice, and that the burden in

part was caused by or linked to social and historical

conditions that have or currently produce discrimination

against minorities.

IV

The district court should have granted the motion for a

preliminary injunction. The district court made a number of

legal errors. The plaintiffs established that the anti-ballot-

collection law significantly burdens the voting rights of

minorities, particularly Hispanic and Native American voters.

The State’s justification of preventing voter fraud was not,

and is not, supportable. One of the most popular and

effective methods of minority voting is now a crime. H. B.

2023 violates the Constitution and the Voting Rights Act.

There are many burdens and challenges faced in Arizona

by Native Americans, Hispanics, African-Americans, the

poor, and the infirm who do not have caregivers or family.

With H.B. 2023, Arizona has added another:

disenfranchisement.

I respectfully dissent.

FILED

NOV 04 2016

MOLLY C. DWYER, CLERK

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

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, c

This text is long and has been trimmed here. Open the source document for the complete record.