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

FOR PUBLICATION

FILED

UNITED STATES COURT OF APPEALS

NOV 02 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…

ORDER

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

Judges Kozinski and McKeown did not participate in the deliberations or vote in this case.

concurring in the grant of rehearing en banc:

This is an urgent case of extraordinary importance involving the suppression of minority voters on the eve of a presidential election.

*792 “Arizona has criminalized one of the most popular and effective methods by which minority voters cast their ballots.” Thomas Dissent at 840 F.Bd 1057, 1086. The law at issue makes it a felony for most people to accept a ballot that a voter has filled out and deliver it to the appropriate polling place on the voter’s behalf. It punishes the routine actions of many get-out-the-vote organizations and political campaigns. Violators can be sentenced to a year in jail and a $150,000 fine. Despite the panel majority’s opinion to the contrary, the record in this case fully documents the disparate burden that this law imposes on minority voters. “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.” Thomas Dissent at 840 F.3d at 1097. It is just as clear that the state’s justifications for the law do not withstand any level of…

dissenting from the grant of rehearing en banc:

We have made a serious mistake by granting rehearing en banc. Our court risks present chaos and future confusion in pursuit of an outcome the Supreme- Court has explicitly told us to avoid. There are no good reasons—and many bad ones—to take this case en banc six days before the election on such a compressed schedule. Sadly, a majority of this court has ignored such dangers in its unseemly rush to overrule, by any means necessary, a five-day old opinion. One hopes cooler heads prevail and this case receives the attention it deserves—but I fear instead a shoot-first, ask questions later approach that will haunt us for years to come.

I

A brief 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. These provisions restrict the collection of voters’ early ballots to family members, household members, certain government officials, and caregivers. Plaintiffs appealed. A Ninth Circuit motions panel unanimously denied plaintiffs’ emergency motion for an injunction pending' appeal on October 11th. On…