Rivko Knox v. Mark Brnovich

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RIVKO KNOX, No. 18-16613

Plaintiff-Appellant,

D.C. No.

v. 2:18-cv-02089-DLR

MARK BRNOVICH, Attorney

General, in his official capacity OPINION

as Arizona Attorney General,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Argued and Submitted October 3, 2018

San Francisco, California

Filed October 31, 2018

Before: Sidney R. Thomas, Chief Judge, and

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

Opinion by Judge Ikuta

2 KNOX V. BRNOVICH

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial of a

preliminary injunction and its bench trial judgment in an

action facially challenging HB 2023, Arizona’s 2016 election

law prohibiting certain persons from collecting voters’ early

mail ballots.

Under HB 2023, 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. Family members, household

members, and caregivers of the voter are exempted from this

general prohibition against collecting ballots.

The panel held that HB 2023 is not preempted by federal

laws regulating the United States Postal Service. The panel

determined that the presumption against preemption applied

in this instance because state regulation of early voting

procedures was not “an area where there has been a history of

significant federal presence,” and that plaintiff failed to rebut

this presumption.

The panel held that HB 2023 does not implicate the First

Amendment rights of ballot collectors like plaintiff. The

*

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

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

KNOX V. BRNOVICH 3

panel determined that plaintiff failed to carry her burden of

demonstrating that the conduct of collecting ballots would

reasonably be understood by viewers as conveying any of

plaintiff’s expressive messages or conveying a symbolic

message of any sort.

Finally, the panel rejected plaintiff’s claim that HB 2023

violates her right to due process under the Fifth Amendment

because it is an overly vague criminal statute. The panel held

that HB 2023 provides fair notice of prohibited conduct and

that because the scope of HB 2023 was clear, it posed no

significant threat of arbitrary enforcement.

COUNSEL

Spencer G. Scharff (argued), Scharff PLC, Phoenix, Arizona;

Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix,

Arizona; for Plaintiff-Appellant.

Andrew G. Pappas (argued), Assistant Solicitor General;

Joseph E. La Rue and Kara M. Karlson, Assistant Attorneys

General; Dominic E. Draye, Solicitor General; Mark

Brnovich, Attorney General; Office of the Attorney General,

Phoenix, Arizona; for Defendant-Appellee.

4 KNOX V. BRNOVICH

OPINION

IKUTA, Circuit Judge:

Rivko Knox brings a facial challenge to H.B. 2023,

Arizona’s 2016 election law prohibiting certain persons from

collecting voters’ early mail ballots. We conclude that H.B.

2023 is not preempted by federal laws regulating the United

States Postal Service, does not violate the First Amendment’s

protection of speech, and is not an unconstitutionally vague

criminal statute. Accordingly, we affirm.

I

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

early ballot,” Ariz. Rev. Stat. § 16-541(A), in addition to

voting in person on Election Day. Voters can either mail in

early ballots or drop them off at an on-site early voting

location in the 27 days leading up to an election. See id. § 16-

542(D). Voters choosing to return their early ballots by mail

need not pay any postage, but their ballots must be received

by 7:00 p.m. on Election Day. Id. §§ 16-542(C), 16-548(A).

Arizona has placed various restrictions on possession of

early ballots. In 1992, Arizona prohibited any person other

than the voter from possessing an unvoted absentee ballot.

See 1991 Ariz. Legis. Serv. ch. 310, § 22 (S.B. 1390) (West).

Arizona later extended this prohibition to unvoted early

ballots of any type, see 1997 Ariz. Legis. Serv. ch. 5, § 18

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

In 2016, Arizona imposed restrictions on the collection of

early ballots. Under H.B. 2023:

KNOX V. BRNOVICH 5

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.

Ariz. Rev. Stat. § 16-1005(H). Family members, household

members, and caregivers of the voter are exempted from this

general prohibition against collecting ballots. Id. § 16-

1005(I).

Rivko Knox has been a Democratic precinct

committeeperson (an elected position) for the Acacia Precinct

since 2004.1 Knox engages in door-to-door canvassing of

prospective voters to educate, register, and encourage them to

vote. As part of her canvassing, Knox often encourages

prospective voters to watch for their early ballot to arrive, to

complete it, and to mail it back. Before the 2016 election

cycle, Knox “accepted and delivered at least one voted ballot

for a voter that [she] met while canvassing [prospective

voters], and who requested that [she] deliver their early

ballot.”

Knox states that “[a]ssisting voters with the delivery of

their early ballots was, and continues to be, a part of

expressing [her] political belief that all registered voters have

an opportunity to use their franchise.” Through the act of

1

This undisputed factual background is drawn from Knox’s

declaration in support of her motion for a preliminary injunction.

6 KNOX V. BRNOVICH

collecting and delivering individuals’ voted early ballots,

Knox intends to communicate the message that she

“support[s] the continued and widespread use of voting by

mail, and that the United States’ postal system provides a

secure and easy platform to exercise the franchise and

conduct elections.” Knox also intends her conduct to

communicate the message that “voting is the most

fundamental right in a democratic society and that [she is]

committed to helping qualified electors exercise their right to

vote regardless of who they vote for.”

Prior to the 2016 election cycle, Knox was willing to

assist voters who asked her to deliver their voted early ballot

to a United States mail receptacle or other appropriate ballot

drop-off location. Since H.B. 2023 went into effect, she

understands that she is “prohibited from collecting and

delivering another person’s early ballot.” Knox is now “very

careful not to offer to deliver or accept for delivery another

person’s early ballot, even if they ask for [her] assistance.”

After H.B. 2023 was enacted, Knox canvassed

prospective voters for a candidate seeking election in the

special election for Congressional District 8. During those

efforts, Knox encountered several voters who had not yet

mailed their early ballots. Knox felt compelled to “censor

[herself] by not offering to collect and deliver” their early

ballots. Instead, Knox encouraged them “not to place their

ballots in the mail because it was too late and, instead, to

deliver their ballots to an appropriate location before the polls

closed.”

Knox plans to canvass prospective voters again in the

upcoming 2018 election and would like to collect and deliver

voted mail-in ballots, but fears doing so because of H.B. 2023

KNOX V. BRNOVICH 7

and the state’s “threats to strictly enforce H.B. 2023.” But for

H.B. 2023, Knox “would affirmatively offer to deliver early

ballots for voters . . . or, at a minimum, [] would be willing to

oblige a voter who requested that [she] deliver his or her

ballot.”

Knox filed this lawsuit in district court, claiming that H.B.

2023 is facially invalid because it: (1) was preempted by

federal law under the Supremacy Clause; (2) violated speech

rights protected by the First Amendment as applied to the

states by the Fourteenth Amendment; and (3) was void for

vagueness because of its failure to define when a person is

deemed to have collected an early ballot in violation of the

Due Process Clause. In her concurrent motion for a

preliminary injunction, Knox asked the court for expedited

relief and to consolidate the hearing on her motion for a

preliminary injunction with a trial on the merits. See Fed. R.

Civ. P. 65(a)(2). After holding a consolidated preliminary

injunction hearing and bench trial, the district court denied

Knox’s motion for a preliminary injunction and ruled against

her on all three of her claims.

Knox timely appealed. We have jurisdiction pursuant to

28 U.S.C. § 1291.2 We review the district court’s conclusions

of law de novo and review its findings of fact for clear error.

2

Knox has standing to bring these claims. See Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016). Although Knox

has not violated H.B. 2023 or been made subject to its penalties, she

alleges she was forced to modify her speech and behavior to comply with

H.B. 2023. This self-censorship in response to a reasonable fear of

prosecution constitutes an injury in fact that would be redressed by a

declaration that H.B. 2023 is unconstitutional. See Ariz. Right to Life

Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003).

8 KNOX V. BRNOVICH

Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th

Cir. 2008) (en banc).

II

We begin with Knox’s claim that H.B. 2023 is preempted

by the federal postal monopoly, as set forth in the Private

Express Statutes, a series of provisions establishing a

monopoly for the U.S. Postal Service, 18 U.S.C.

§§ 1693–1696; 39 U.S.C. §§ 401, 601–606, and their

implementing regulations, 39 C.F.R. §§ 310, 320. To

succeed on such a facial challenge, Knox “must show that ‘no

set of circumstances exists under which the [state] Act would

be valid.’” Puente Ariz. v. Arpaio, 821 F.3d 1098, 1104 (9th

Cir. 2016) (quoting United States v. Salerno, 481 U.S. 739,

746 (1987)).

A

We first outline the legal framework for determining

when a state statute is preempted. The Supremacy Clause of

the Constitution provides that the laws of the United States

“shall be the supreme Law of the Land . . . any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, cl. 2. “This means that

when federal and state law conflict, federal law prevails and

state law is preempted.” Murphy v. Nat’l Collegiate Athletic

Ass’n, 138 S. Ct. 1461, 1476 (2018).

“[T]he purpose of Congress is the ultimate touchstone in

every pre-emption case.” Wyeth v. Levine, 555 U.S. 555, 565

(2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

(1996)). In determining Congress’s intent, we start “with the

basic assumption that Congress did not intend to displace

KNOX V. BRNOVICH 9

state law,” Maryland v. Louisiana, 451 U.S. 725, 746 (1981),

and that federal law does not supersede “the historic police

powers of the States” unless “that was the clear and manifest

purpose of Congress.” Wyeth, 555 U.S. at 565 (quoting Lohr,

518 U.S. at 485). This presumption against preemption

applies when a state regulates in an area of historic state

power even if the law “touche[s] on” an area of significant

federal presence. Puente, 821 F.3d at 1104 n.5 (citing Wyeth,

555 U.S. at 565 n.3). In Puente, for instance, although

Arizona’s identity-theft laws had undisputed “effects in the

area of immigration,” we held there was a presumption

against preemption because “the text of the laws regulate[d]

for the health and safety of the people of Arizona.” Id. (citing

Lohr, 518 U.S. at 475). By contrast, there is no presumption

against preemption when the State regulates in an area such

as “national and international maritime commerce,” where

“the federal interest has been manifest since the beginning of

our Republic and is now well established.” United States v.

Locke, 529 U.S. 89, 99 (2000).3

In determining congressional intent, we first consider

whether Congress made its intent to preempt state law clear

through express language in a statute. Oneok, Inc. v. Learjet,

Inc., 135 S. Ct. 1591, 1595 (2015). Even when a statute does

not expressly refer to preemption, Congress may implicitly

preempt state legislation through either field preemption or

conflict preemption. Id.

3

Although some Justices have cast doubt on the continued viability

of the presumption against preemption, see PLIVA, Inc. v. Mensing,

564 U.S. 604, 621–23 (2011) (plurality opinion), the Supreme Court has

not yet abandoned this principle. See Arizona v. United States, 567 U.S.

387, 400 (2012); see also CTS Corp. v. Waldburger, 134 S. Ct. 2175,

2188–89 (2014).

10 KNOX V. BRNOVICH

“Field preemption occurs when federal law occupies a

‘field’ of regulation ‘so comprehensively that it has left no

room for supplementary state legislation.’” Murphy, 138 S.

Ct. at 1480 (quoting R.J. Reynolds Tobacco Co. v. Durham

Cty., 479 U.S. 130, 140 (1986)). In other words, courts will

infer that Congress intended “to displace state law altogether”

when Congress enacts “a framework of regulation so

pervasive that Congress left no room for the States to

supplement it or where there is a federal interest so dominant

that the federal system will be assumed to preclude

enforcement of state laws on the same subject.” Arizona,

567 U.S. at 399 (internal quotations and ellipses omitted)

(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947)). “The essential field preemption inquiry is whether

the density and detail of federal regulation merits the

inference that any state regulation within the same field will

necessarily interfere with the federal regulatory scheme.”

Nat’l Fed’n of the Blind v. United Airlines Inc., 813 F.3d 718,

734 (9th Cir. 2016). Because “Congress must clearly

manifest an intention” to “enter and completely absorb the

field” in order to preclude state regulation in that field, Ry.

Mail Ass’n v. Corsi, 326 U.S. 88, 97 (1945), it is necessary to

delineate “the pertinent regulatory field” with specificity,

Nat’l Fed’n, 813 F.3d at 734.

In some limited circumstances where the overall field

appears to be federally regulated, “a federal decision to forgo

regulation in a given area may imply an authoritative federal

determination that the area is best left un regulated, and in

that event would have as much pre-emptive force as a

decision to regulate.” Ark. Elec. Coop. Corp. v. Ark. Pub.

Serv. Comm’n, 461 U.S. 375, 384 (1983). Thus, Congress

can impliedly create a “federally mandated free-market” area

that must be left unregulated by any state enactments. P.R.

KNOX V. BRNOVICH 11

Dep’t. of Consumer Affairs v. Isla Petroleum Corp., 485 U.S.

495, 500 (1988). But such an unregulated zone is “decidedly

untypical” and cannot be “created subtly.” Id. Courts

consider the “language, history, or policy of” the relevant

federal law to determine whether Congress purposefully acted

to perpetuate a “regulatory gap.” See Ark. Elec., 461 U.S. at

384.

Conflict preemption is narrower than field preemption.

Under conflict preemption principles, “state law is pre-

empted to the extent that it actually conflicts with federal

law.” English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990).

Courts have found conflict preemption in two situations:

[1] “where compliance with both state and federal law is

impossible, or [2] where the state law stands as an obstacle to

the accomplishment and execution of the full purposes and

objectives of Congress.” Oneok, Inc., 135 S. Ct. at 1595

(internal quotation marks omitted). A state law may stand as

“an obstacle to the regulatory system Congress chose” if

Congress chooses a specific method of enforcement to

achieve federal goals, and a state law adopts a different

enforcement method that interferes with “the careful balance

struck by Congress.” Arizona, 567 U.S. at 406. If Congress

has not adopted a comprehensive regulatory program in a

specific area, however, the state has “authority to pass its own

laws on the subject.” Id. at 404. For instance, at a time when

Congress had expressed no more than “a peripheral concern”

regarding the employment of aliens not entitled to lawful

residence in the United States, a state had broad authority to

impose civil penalties on such employment. Id. (quoting and

distinguishing De Canas v. Bica, 424 U.S. 351, 360 (1976)).

After Congress later enacted “a comprehensive framework

for combating the employment of illegal aliens,” a similar

12 KNOX V. BRNOVICH

state enactment interfered with Congress’s purposes and was

therefore preempted. Id. (internal quotation marks omitted).

B

Because the preemptive scope of the Private Express

Statutes depends on Congress’s intent, Wyeth, 555 U.S. at

566, we now consider the scope and purpose of these statutes

and their implementing regulations, 39 C.F.R. §§ 310, 320.

“Since its establishment, the United States Postal Service

has exercised a monopoly over the carriage of letters in and

from the United States.” Air Courier Conference of Am. v.

Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 519

(1991). This monopoly has “always been limited to the

carriage of mail for hire,” and did not extend to the “private,

gratuitous carriage” of mail. Regents of Univ. of Cal. v. Pub.

Emp’t Relations Bd., 485 U.S. 589, 597 (1988).

Congress enacted the first statute limiting private carriage

in 1792. Air Courier, 498 U.S. at 526. “In 1825 and 1827,

Acts were passed prohibiting the private carriage of letters

through the use of stages or other vehicles, packet boats, or

other vessels, § 19, ch. 64 of Act of March 3, 1825, 4 Stat.

107, and foot and horse posts, § 3, ch. 61 of Act of March 2,

1827, 4 Stat. 238.” Id. In 1845, Congress enacted “An Act

to reduce the rates of postage, to limit the use and correct the

abuse of the franking privilege, and for the prevention of

frauds on the revenues of the Post Office Department,” which

significantly revised the Private Express Statutes. Id; Act of

Mar. 3, 1872, ch. 43, 5 Stat. 732. According to the Supreme

Court, Congress was motivated to enact the 1845 Act by a

concern that “the Post Office Department continued to run

substantial deficits in spite of high postage rates.” Air

KNOX V. BRNOVICH 13

Courier, 498 U.S. at 526. Congress recognized that the

Postal Service had a duty “to serve outlying, frontier areas,

even if it meant doing so below cost,” in order “to achieve

national integration and to ensure that all areas of the Nation

were equally served by the Postal Service.” Id. at 527.

Congress believed the Postal Service’s shaky financial

situation was primarily caused by competition from private

companies, which had not been successfully prosecuted under

the 1825 and 1827 Acts. Id. These competitors undercut the

Postal Service’s prices on low-cost routes and left it with only

“high-cost routes and insufficient means to fulfill its mandate

of providing uniform rates and service to patrons in all areas,

including those that are remote or less populated.” Id. at 519.

The best way to address these concerns, Congress decided,

was “driving private expresses out of business and increasing

mail volume of the Post Office” in order to protect the Postal

Services’s revenues and ensure it could fulfill its mission. Id.

at 527. Accordingly, the 1845 Act included a broad

prohibition on private carriage aimed at strengthening the

postal monopoly. Act of Mar. 3, 1872, ch. 43, § 9, 5 Stat.

732. In its modern form, the prohibition on private carriage

reads:

Whoever establishes any private express for

the conveyance of letters or packets, or in any

manner causes or provides for the conveyance

of the same by regular trips or at stated

periods over any post route which is or may

be established by law, or from any city, town,

or place to any other city, town, or place,

between which the mail is regularly carried,

14 KNOX V. BRNOVICH

shall be fined not more than $500 or

imprisoned not more than six months, or both.

18 U.S.C. § 1696(a).4

While ensuring that courier services could not “compet[e]

selectively with the Postal Service on its most profitable

routes,” Air Courier, at 527–28, the Private Express Statutes

did not purport to regulate conduct that did not affect

revenues. Most important here, the 1845 Act carved out a

“private hands” exception, which provided that the Private

Express Statutes “shall not prohibit the conveyance or

transmission of letters or packets by private hands without

compensation.” 18 U.S.C. § 1696(c). This exception was “a

reflection of the limited nature of the monopoly; it was

designed to ensure that private carriage is not undertaken ‘for

hire or reward.’” Regents, 485 U.S. at 597 (citation omitted).

The 1845 Act permitted other exceptions to the postal

monopoly that did not threaten postal revenues. Section

1696(a) provides that the Private Express Statutes do not

“prohibit any person from receiving and delivering to the

nearest post office, postal car, or other authorized depository

for mail matter any mail matter properly stamped.” 18 U.S.C.

§ 1696(a). Section 1694 allows businesses to operate an

internal mail system by carrying letters that relate “to the

4

In 1872, Congress reenacted the Private Express Statutes and

updated its wording without making any substantive changes. Roger P.

Craig & William T. Alvis, The Postal Monopoly: Two Hundred Years of

Covering Commercial as Well as Personal Messages, 12 U.S.F. L. Rev.

57, 74–76 (1977). Compare Act of Mar. 3, 1872, ch. 43, § 9, 5 Stat. 732,

with Act of June 8, 1872, ch. 335, § 228, 17 Stat. 283 (current version at

18 U.S.C. § 1696). The Private Express Statutes have not substantially

changed since the 1872 recodification. Craig & Alvis, supra, at 77.

KNOX V. BRNOVICH 15

current business of the carrier.” 18 U.S.C. § 1694; Regents,

485 U.S. at 594. And Section 1696(c) allows any “special

messenger employed for the particular occasion only” to

transmit letters. 18 U.S.C. § 1696(c).

The Postal Regulatory Commission’s subsequent

regulations to enforce the Private Express Statutes did not

alter this approach to the scope of the Postal Service’s

monopoly. See 39 C.F.R. §§ 310.1–310.7. The regulations

reiterate the Private Express Statutes’ prohibition on carriage

for hire on postal routes, see 39 C.F.R. § 310.2(a), while

formalizing the statutory exceptions for uncompensated

carriage of mail.5 The Postal Reorganization Act of 1970

later made additional exceptions to the postal monopoly for

compensated carriage, including authorizing the Postal

Regulatory Commission to suspend the postal monopoly for

services described by regulation. 39 U.S.C. § 601(b).6

5

39 C.F.R. §§ 310.2(d)(2), 310.3(b) (permitting delivery of letters of

the carrier); id. §§ 310.2(d)(3), 310.3(c) (permitting delivery of letters

transmitted without compensation); id. §§ 310.2(d)(4), 310.3(d)

(permitting delivery of letters transmitted by special messenger employed

for the particular occasion only); id. §§ 310.2(d)(4), 310.3(e) (permitting

delivery of letters carried prior or subsequent to mailing).

6

The relevant regulations provide for suspension of the postal

monopoly for certain limited activities. See 39 C.F.R. § 320.2 (data

processing materials); id. § 320.4 (certain letters of college and university

organizations); id. § 320.5 (certain international-ocean carrier-related

documents); id. § 320.6 (extremely urgent letters); id. § 320.7

(advertisements accompanying parcels or periodicals); id. § 320.8

(international remailing).

16 KNOX V. BRNOVICH

C

We now turn to Knox’s claim that the Private Express

Statutes and their implementing regulations implicitly

preempt H.B. 2023 through either field preemption or conflict

preemption and that there is no set of circumstances under

which H.B. 2023 would be valid.

We begin by considering whether the presumption against

preemption applies in this context. We conclude that it does,

because state regulation of early voting procedures is not “an

area where there has been a history of significant federal

presence.” Locke, 529 U.S. at 108. Although H.B. 2023

touches on the broader field of letter carriage and delivery,

such incidental effects in an area of federal interest is not

enough to overcome the presumption against preemption.

See Puente, 821 F.3d at 1104 n.5 (citing Wyeth, 555 U.S. at

565 n.3). Therefore, our analysis must focus on whether

Knox rebutted this presumption.

We first consider Knox’s field preemption claim. Our

precedent requires us to begin by “delineat[ing] the pertinent

regulatory field” Congress intended to occupy by enacting the

Private Express Statutes. Nat’l Fed’n, 813 F.3d at 734. The

Supreme Court has already established that the Private

Express Statutes regulate “the conduct of competitors of the

Postal Service,” Air Courier, 498 U.S. at 528 n.5, and does

not address the uncompensated carriage of mail, which poses

no threat to the Post Office’s revenues, see Regents, 485 U.S.

at 597.

H.B. 2023 does not regulate within this field of mail

carriage for hire; rather, it explicitly exempts any “United

States postal service worker . . . engaged in official duties”

KNOX V. BRNOVICH 17

from regulation. Ariz. Rev. Stat. § 16-1005(H). On its face,

therefore, the Private Express Statutes do not implicitly

preempt H.B. 2023 through field preemption.

To avoid this conclusion, Knox raises two arguments.

First, Knox argues that H.B. 2023 regulates the carriage of

mail for hire because it does not prohibit election officials

and caregivers from collecting ballots, and such individuals

receive salaries for performing their jobs. This argument

fails. H.B. 2023 does not regulate the ballot-collection

activities of election officials or caregivers, but merely

exempts them from the state statute’s prohibition. Moreover,

such individuals are not collecting ballots for a fee in

competition with the Postal Service; rather, their collection of

ballots is merely an incidental part of their jobs.

Second, Knox urges us to read the Private Express

Statutes as expressing a clear and manifest intent to occupy

the broadly defined field of letter carriage and delivery

generally, leaving no room for state regulation of

compensated or uncompensated mail carriers. According to

Knox, by declining to prohibit uncompensated carriage of

mail, Congress intended to prevent regulation of any sort,

state or federal, in this area. See Isla Petroleum, 485 U.S. at

500. In support of this argument, Knox points to the

regulatory exceptions to the Private Express Statutes that

permit specified conduct, and claims that the language

providing that certain conduct is “permitted,” 39 C.F.R.

§ 310.2(d), or “permissible,” id. § 310.3, indicates Congress’s

intent to leave the permitted conduct unregulated by the

state.7

7

Knox also notes other regulations that suspend the postal monopoly

for specified conduct, 39 C.F.R. §§ 320.1–320.9.

18 KNOX V. BRNOVICH

We reject this argument. The Supreme Court made clear

that Congress did not intend to regulate the uncompensated

carriage of mail; Congress’s sole concern was preventing

competitors from reducing the Post Office’s revenues. See

Regents, 485 U.S. at 597–98. The regulations cited by Knox

are consistent with Congress’s focus on competitors rather

than on the field of mail carriage as a whole; they provide that

the postal monopoly does not apply to a limited range of

activities that do not pose a competitive threat to the Post

Office. Carving out specified conduct from a broad

prohibition is not equivalent to regulating that conduct or

ensuring that such conduct may proceed unregulated. Given

the presumption against preemption, the Postal Commission’s

regulations are best read as withdrawing from part of a field,

rather than occupying it. Because Congress has not made a

clear and manifest determination that uncompensated carriage

of mail should be left unregulated by states as well as federal

authorities, see Ark. Elec., 461 U.S. at 383, we conclude that

Congress did not implicitly preempt the field of

uncompensated carriage of mail.8

8

Knox also claims that Congress expressed its intent to regulate the

field of uncompensated carriage of mail by criminalizing interference with

mail carriers. See, e.g., 18 U.S.C. § 1702 (prohibiting taking any letter

“from a letter or mail carrier” with design to “obstruct the

correspondence” or pry into the business of another); see also 18 U.S.C.

§ 1708 (prohibiting theft or receipt of stolen letter “from a letter or mail

carrier”). We reject this argument. On their face, the criminal statutes

cited by Knox apply to interference with mail that is in the U.S. Postal

Service’s custody (whether from a post office, mail depository, or other

receptacle, or in the custody of letter or mail carriers), not to the private

carriage of mail. Nor have we found any case interpreting the statute as

applying to uncompensated letter carriers, as Knox asserts. The cases

cited by Knox are inapposite here, as they apply the statutes to defendants

who have interfered with mail that has been deposited in a U.S. mail

KNOX V. BRNOVICH 19

We next turn to Knox’s conflict preemption arguments,

and consider whether H.B. 2023 is preempted because it

conflicts with the Private Express Statutes and other postal

regulations. Knox does not argue that compliance with H.B.

2023 and federal law is impossible. Oneok, Inc., 135 S. Ct.

at 1595. Rather, she argues that H.B. 2023 stands as an

obstacle to the operation of comprehensive federal postal

laws. Id.

First, Knox contends that H.B. 2023 obstructs Congress’s

objective of ensuring efficient delivery of the mail. We

disagree. State laws may obstruct the federal postal

monopoly “where state regulation involved a direct, physical

interference with federal activities under the postal power or

some direct, immediate burden on the performance of the

postal functions.” Corsi, 326 U.S. at 96. Applying this

principle, we have held that a local ordinance that required

postal letter carriers to “obtain express consent from residents

before crossing their lawns in the course of mail delivery”

was preempted by federal regulations that “authorize[d]

postal carriers to cross lawns unless the owner objects.”

United States v. City of Pittsburg, Cal., 661 F.2d 783, 784–85

(9th Cir. 1981). Because the local “ordinance interfere[d]

with postal carriers’ federal duty to deliver the mail

efficiently” it was therefore unconstitutional. Id. at 786. No

such conflict is present here: H.B. 2023’s prohibitions

regarding the collection of voters’ early ballots exempt

federal postal officials and therefore do not interfere with any

federal activities under Congress’s postal power. Because

H.B. 2023 exempts federal postal workers from regulation, it

does not frustrate Congress’s objectives in enacting the

receptacle. See United States v. Childs, 598 F.2d 169, 172 (D.C. Cir.

1979); United States v. Wade, 364 F.2d 931, 934 (6th Cir. 1966).

20 KNOX V. BRNOVICH

Private Express Statutes; namely, to protect the postal

monopoly and its ability to generate revenue. Air Courier,

498 U.S. at 525–26.

Next, Knox notes that the Postal Regulatory Commission

has promulgated regulations that suspend the postal

monopoly for the delivery of “extremely urgent letters,”

39 C.F.R. § 320.6, which is relied on by private carriers such

as FedEx and DHL. Knox argues that H.B. 2023 conflicts

with federal law because it would prohibit such private

carriers from accepting a ballot for delivery, despite the

authorization under federal regulation. We reject this

argument for substantially the same reason we rejected her

similar argument in the field preemption context. Congress’s

purpose in enacting the Private Express Statutes was to

protect the Postal Service’s revenues, and a state statute that

prohibits private carriers from collecting state ballots does not

stand as an obstacle to the accomplishment of Congress’s

purpose. Under the presumption against preemption, we

decline to interpret a federal regulation withdrawing a federal

prohibition on certain types of private carriage as conflicting

with a state statute imposing a different prohibition on that

carriage.

We also reject Knox’s argument that H.B. 2023 obstructs

Congress’s goal of achieving “national integration” because

it precludes individuals from offering more efficient methods

of early-ballot delivery. This theory is directly contrary to the

Supreme Court’s analysis of the Private Express Statutes.

According to the Supreme Court, Congress’s goal of

achieving national unity required the Postal Service to reach

all the far-flung reaches of the nation. Air Courier, 498 U.S.

at 528. In order to ensure the Postal Service could generate

sufficient revenues to accomplish this mission, Congress

KNOX V. BRNOVICH 21

decided to eliminate its competition. Id. Congress did not

consider whether private, uncompensated delivery of mail

might provide more efficient delivery to remote areas; its

only intent was to enhance the Postal Service’s revenues so

it could discharge its duty of providing delivery to such areas.

Finally, we reject Knox’s argument that by imposing

penalties on the uncompensated carriage of letters, H.B. 2023

is an obstacle to the regulatory system chosen by Congress in

enacting the Private Express Statutes. See Arizona, 567 U.S.

at 405–06. Because Congress did not choose to regulate

uncompensated carriers in the Private Express Statutes, a

state has “authority to pass its own laws on the subject.” Id.

at 404. Because H.B. 2023 imposes penalties on individuals

excluded from Congress’s regulatory scheme, it does not

conflict with that regulatory scheme.

Because Congress has not implicitly preempted H.B.

2023 through field or conflict preemption, we conclude that

H.B. 2023 is not preempted by federal law.9

III

We next consider Knox’s claim that H.B. 2023 violates

the First Amendment, made applicable to the states through

9

We also reject Knox’s argument that Congress has superseded

H.B. 2023 pursuant to its authority under the Elections Clause, U.S. Const.

art. I, § 4, cl. 1, because Knox failed to raise this argument distinctly on

appeal. Hilo v. Estate of Marcos, 103 F.3d 767, 778 n.4 (9th Cir. 1996).

Further, Knox fails to identify any federal statute where “Congress

legislates with respect to the ‘Times, Places and Manner’ of holding

congressional elections,” let alone one which supersedes Arizona’s early-

ballot-collection law. Arizona v. Inter Tribal Council of Ariz., Inc.,

570 U.S. 1, 14 (2013).

22 KNOX V. BRNOVICH

the Fourteenth Amendment, by burdening freedom of speech.

In the First Amendment context, a party bringing a facial

challenge need show only that “a substantial number of [a

law’s] applications are unconstitutional, judged in relation to

the statute’s plainly legitimate sweep.” United States v.

Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 449

n.6 (2008)).10

The First Amendment, provides that “Congress shall

make no law . . . abridging the freedom of speech.” U.S.

Const. amend I. “While [t]he First Amendment literally

forbids the abridgment only of speech, the Supreme Court has

long recognized that its protection does not end at the spoken

or written word.” United States v. Swisher, 811 F.3d 299,

310–11 (9th Cir. 2016) (internal quotation marks omitted)

(quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)). A

message “delivered by conduct that is intended to be

communicative and that, in context, would reasonably be

understood by the viewer to be communicative” is symbolic

speech protected by the First and Fourteenth Amendments.

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294,

(1984); see also Texas, 491 U.S. at 404. Applying this

principle, the Supreme Court has held that burning an

American flag as part of a demonstration, Texas, 491 U.S. at

406, wearing a black armband to protest the Vietnam war,

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,

505 (1969), and “a sit-in by blacks in a ‘whites only’ area to

10

Because Knox seeks a declaration “that H.B. 2023 is

unconstitutional in its entirety” and an injunction preventing enforcement

of the statute for any purpose, we construe her claims as making a facial

challenge, see John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010), even

though some of her arguments are specific to her own circumstances.

KNOX V. BRNOVICH 23

protest segregation,” Texas, 491 U.S. at 404 (citing Brown v.

Louisiana, 383 U.S. 131, 141–42 (1966)), constitute

expressive conduct protected by the First Amendment.

Nevertheless, the Court has rejected the concept 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). Rather the First Amendment

protects only conduct that “is intended to convey a

‘particularized message’ and the likelihood is great that the

message would be so understood.” Nunez v. Davis, 169 F.3d

1222, 1226 (9th Cir. 1999) (quoting Texas, 491 U.S. at 404).

Because the Court has eschewed a rule that “all conduct is

presumptively expressive,” individuals claiming the

protection of the First Amendment must carry the burden of

demonstrating that their nonverbal conduct meets the

applicable standard. Clark, 468 U.S. at 293 n.5.

Knox argues that the act of collecting early ballots is

expressive conduct. Knox’s sworn declaration states that her

conduct in collecting early ballots communicates the message

that she “support[s] the continued and widespread use of

voting by mail, and that the United States’ postal system

provides a secure and easy platform to exercise the franchise

and conduct elections,” and that “voting is the most

fundamental right in a democratic society and that [she is]

committed to helping qualified electors exercise their right to

vote regardless of who they vote for.” We conclude that she

has not carried her burden of demonstrating that the conduct

of collecting ballots would reasonably be understood by

viewers as conveying any of these messages or conveying a

symbolic message of any sort. See Voting for Am., Inc. v.

Steen, 732 F.3d 382, 392 (5th Cir. 2013) (rejecting argument

24 KNOX V. BRNOVICH

that collecting voter registration documents is inherently

expressive conduct).

Knox also claims that H.B. 2023 is analogous to laws that

burden the ability of individuals to make campaign

contributions or to deliver information through the mail and

therefore raises First Amendment concerns. We disagree;

none of Knox’s analogies are apposite. While restrictions on

“the amount of money a person or group can spend on

political communication during a campaign necessarily

reduces the quantity of expression,” Buckley v. Valeo,

424 U.S. 1, 19 (1976), H.B. 2023 does not limit the ability of

would-be ballot collectors to communicate their messages in

any comparable way. Further, prohibitions against using the

mails to communicate specified types of information (such as

laws prohibiting sending or receiving pornography or

seditious literature through the mail) may raise serious First

Amendment issues. Blount v. Rizzi, 400 U.S. 410, 428

(1971); Lamont v. Postmaster Gen. of U.S., 381 U.S. 301, 305

(1965). But courts have extended such protection to the

senders and recipients of mail, Currier v. Potter, 379 F.3d

716, 727 (9th Cir. 2004), never to the carriers of other

people’s mail.

Further, Knox’s reliance on Bartnicki v. Vopper, 532 U.S.

514, 517–19, 526–27 (2001), which held that the delivery of

a newsworthy recording to the media was protected by the

First Amendment, is also misplaced. In Bartnicki, the

Supreme Court acknowledged that the delivery of a tape

recording of illegally intercepted conversations to a radio

commentator “might be regarded as conduct,” but reasoned

that in context it was “the kind of ‘speech’ that the First

Amendment protects.” Id. at 527. According to the Court,

the purpose of the delivery was “to provide the recipient with

KNOX V. BRNOVICH 25

the text of recorded statements,” analogizing such conduct to

the act of disclosing and publishing the information. Id. This

rationale does not apply to the delivery of a voter’s early

ballot, which is not conduct analogous to the disclosure and

publication of newsworthy information. Although voted

early ballots constitute the voter’s speech, Knox “does not

‘speak’ in this context by handling another person’s

‘speech.’” Steen, 732 F.3d at 390 (rejecting the argument that

a third party’s collection and delivery of a voter’s completed

registration application constitutes the third party’s speech for

First Amendment purposes).

Accordingly, H.B. 2023 does not implicate the First

Amendment rights of ballot collectors like Knox.

IV

Finally, we consider Knox’s claim that H.B. 2023 violates

her right to due process under the Fifth Amendment because

it is an overly vague criminal statute.11

A

The void for vagueness doctrine is rooted in the Due

Process Clause of the Fifth Amendment. United States v.

Williams, 553 U.S. 285, 304 (2008). “The Fifth Amendment

provides that ‘[n]o person shall . . . be deprived of life,

11

Knox also argues that we should consider her vagueness challenge

under the relaxed standard applicable to criminal statutes that burden

protected speech. See United States v. Williams, 553 U.S. 285, 304

(2008). Because we have concluded that H.B. 2023 does not burden

speech or expressive conduct protected by the First Amendment, we reject

this argument.

26 KNOX V. BRNOVICH

liberty, or property, without due process of law,’” and “the

Government violates this guarantee by taking away

someone’s life, liberty, or property under a criminal law

[1] so vague that it fails to give ordinary people fair notice of

the conduct it punishes, or [2] so standardless that it invites

arbitrary enforcement.” Johnson v. United States, 135 S. Ct.

2551, 2556 (citing Kolender v. Lawson, 461 U.S. 352, 357–58

(1983)). A criminal statute violates the “fair notice”

requirement if it “fails to give a person of ordinary

intelligence fair notice that his contemplated conduct is

forbidden by the statute.” Colautti v. Franklin, 439 U.S. 379,

390 (1979) (internal quotation marks omitted). A statute

violates the “arbitrary enforcement” requirement if it is “so

indefinite that it encourages arbitrary and erratic arrests and

convictions.” Id. (internal quotation marks omitted). In other

words, “ordinary notions of fair play and the settled rules of

law,” Johnson, 135 S. Ct. at 2557, are violated if police

officers, prosecutors, and judges are essentially “defining

crimes and fixing penalties” by filling statutory gaps “so large

that doing so becomes essentially legislative.” United States

v. Evans, 333 U.S. 483, 486–87 (1948).

B

H.B. 2023 does not violate either the fair notice or the

arbitrary enforcement requirements.

First, H.B. 2023 provides fair notice of the prohibited

conduct. It states 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). It then

exempts from that prohibition “[a]n election official, a United

States postal service worker or any other person who is

allowed by law to transmit United States mail . . . if the

KNOX V. BRNOVICH 27

official, worker or other person is engaged in official duties.”

Id. A reasonable person would understand that this language

generally prohibits the collection of ballots but makes

exceptions for (1) an election official, if engaged in official

duties, and (2) U.S. postal service workers and other persons

allowed by law to transmit U.S. mail, if engaged in official

duties. Knox points to no evidence that the public has had

difficulties in understanding or complying with H.B. 2023.

Knox’s primary argument is that the exception for “any

other person who is allowed by law to transmit United States

mail . . . if . . . engaged in official duties” is unclear. We

disagree. A person of ordinary intelligence would understand

that the language covers persons who have official duties

involving the delivery of United States mail, provided that

they are engaged in such duties at the time they pick up the

ballots (and not volunteering as third-party ballot collectors

during their days off). See Democratic Nat’l Comm. v.

Reagan, — F. 3d —, No. 18-15845, 2018 WL 4344291, at *4

(9th Cir. Sept. 12, 2018) (summarizing all exceptions to H.B.

2023); Knox v. Brnovich, — F. Supp.3d —, No. CV-18-

02089-PHX-DLR, 2018 WL 4042765, at *8 (D. Ariz. Aug.

27, 2018).

Knox also argues that H.B. 2023 is vague because the

exception for “any other person allowed by law to transmit

United States mail” could be interpreted as exempting

everyone in the country. She reasons that the private hands

exemption to the postal monopoly effectively allows anyone

to deliver United States mail, so long as the delivery is

uncompensated. Such a reading would deprive H.B. 2023 of

any meaningful impact, because it would effectively allow

anyone to collect early ballots. We reject this argument,

because a person of ordinary intelligence would not read H.B.

28 KNOX V. BRNOVICH

2023 in a manner that would make its restrictions

meaningless. Indeed, Knox herself stated that she understood

H.B. 2023 prohibits her from collecting early ballots.

Moreover, we have stated that H.B. 2023’s restrictions are

meaningful. See Feldman v. Ariz. Sec’y of State’s Office,

843 F.3d 366, 368 (9th Cir. 2016) (en banc) (stating that H.B.

2023 made “the collection of legitimate ballots by third

parties a felony”).

We also reject Knox’s argument that a plain reading of

the exception makes it duplicative of the separate exception

for “a United States postal service worker.” Federal law

authorizes government officials who are not employees of the

Postal Service to deliver U.S. mail as part of their official

duties. See, e.g., 39 U.S.C. § 406 (authorizing Department of

Defense and Department of Transportation personnel “to

perform postal services” at branch post offices at “camps,

posts, bases, or stations of the Armed Forces and at defense

or other strategic installations”); see also 39 U.S.C. § 413

(authorizing Department of State personnel “to perform

postal services” at branch post offices at United States

diplomatic missions in locations abroad). Under H.B. 2023,

such officials would not qualify as postal service workers, but

would qualify as “any other person who is allowed by law to

transmit United States mail.”

We also reject Knox’s argument that it is unclear when an

individual is “engaged in official duties” when collecting

early ballots. Similar phrases are common in the federal

criminal code12 and have been upheld against vagueness

12

See, e.g., 18 U.S.C. § 111 (criminalizing anyone who “assaults,

resists, opposes, impedes, intimidates, or interferes with” any federal

employee or official while they are “engaged in or on account of the

KNOX V. BRNOVICH 29

challenges. See United States v. Linn, 438 F.2d 456, 458

(10th Cir. 1971); United States v. Varkonyi, 645 F.2d 453,

456–57 (5th Cir. 1981).

Finally, Knox claims that she could qualify as an

“election official . . . engaged in official duties” because her

duties as a precinct committeeperson include the delivery of

United States mail. We disagree. No person of ordinary

intelligence would conclude that a precinct committeeperson

is an election official who is authorized to collect early

ballots as part of her official duties. Compare Ariz. Rev. Stat.

§ 16-822(E) (detailing precinct committeeperson duties), with

39 U.S.C. § 413 (authorizing State Department personnel “to

perform postal services”).

Because the scope of H.B. 2023 is clear, it poses no

significant threat of arbitrary enforcement. A July 16, 2018,

statement issued by the Maricopa County Attorney is not to

the contrary.13 In that statement, the County Attorney stated

performance of official duties . . . ”) (emphasis added); see also 18 U.S.C.

§ 115 (criminalizing the assault, kidnap, or murder, or the attempt or threat

to do so, of a federal official, judge, or law enforcement officer, or their

family member, “with intent to impede, intimidate, or interfere with such

official, judge, or law enforcement officer while engaged in the

performance of official duties, or with intent to retaliate against such

official, judge, or law enforcement officer on account of the performance

of official duties . . . ”) (emphasis added).

13

The Maricopa County Attorney’s July 16, 2018 statement reads in

full:

It has come to my attention that there may be some

confusion about the intention to enforce the election

laws in Arizona. I want to assure anyone who may be

planning to engage in ballot harvesting for this Primary

30 KNOX V. BRNOVICH

he intended to enforce H.B. 2023 and informed anyone who

was planning to engage in “ballot harvesting” that it was a

class 6 felony to collect a ballot “unless you are a family

member, household member, or caregiver for the voter to

whom the ballot was issued.” Although, as Knox argues, the

County Attorney did not state that H.B. 2023 also exempted

postal service workers or other authorized personnel engaged

in official duties, Knox does not explain how such an

omission poses a risk of “encourag[ing] arbitrary and erratic

arrests and convictions,” Papachristou v. Jacksonville,

405 U.S. 156, 162 (1972), or raises the spectre of prosecutors

“defining crimes and fixing penalties” by filling in gaps in

statutes. United States v. Evans, 333 U.S. 483, 486 (1948).

We conclude that H.B. 2023 is not void for vagueness.

AFFIRMED.

Election and General Election that it is a class 6 felony

to knowingly collect a mail-in ballot for the primary

election in August, or for the general election in

November, unless you are a family member, household

member, or caregiver for the voter to whom the ballot

was issued. Based on its concerns about the potential

for fraud and misconduct affecting our elections, the

Arizona State Legislature passed this law in order to

protect the ingerity of Arizona elections. The Maricopa

County Attorney’s Office is committed to protecting

our voting process by enforcing this law. If you are not

authorized by the statute to take possession of another

voter’s ballot, instruct the voter personally to place their

[sic] ballot in the mail, to deliver the ballot in person, or

to vote in person.