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

FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 02 2016

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

LESLIE FELDMAN; LUZ No. 16-16865

MAGALLANES; MERCEDEZ HYMES;

JULIO MORERA; CLEO OVALLE; D.C. No. 2:16-cv-01065-DLR PETERSON ZAH, Former 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 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…

In the 1970s 1 Arizona enacted a statute which required each voter who votes in *617 person to cast his or her ballot at the precinct polling station at which the voter was registered to vote (the “precinct vote rule”). Since then Arizona has amended its statutes to adopt voting by mail, so long as the vote is received by election officials by election day. Arizona has also enacted early in-person voting during the 27 days preceding election day at designated early voting locations. Further, on election day, a voter who has received a ballot through the mail may deposit that ballot at any precinct in the county. But, if one is voting in the traditional in-person manner on election day, the precinct vote rule applies: for the vote to be valid, one must vote at the assigned polling place or vote center. A vote cast elsewhere will not be counted.

Feldman and other Appellants 2 here challenged the precinct vote rule on the grounds that it violated the federal Voting Rights Act of 1965 (“VRA”), 52 .U.S.C. § 10301, and unjustifiably burdened their election rights guaranteed by the Fourteenth Amendment of. the federal Constitution. The district court denied Feldman’s motion for…

dissenting:

Voting should be easy in America. In Arizona, it is not, and the burden falls heaviest on minority voters. At issue in this appeal is Arizona’s refusal to count ballots cast out-of-precinct, even for races in which the citizen is entitled, qualified, and eligible to vote. Statistically significant evidence shows that this practice disproportionately and adversely impacts minority voters. Because the district court erred in denying the motion for a preliminary injunction directing that these legitimate votes be counted, I respectfully dissent.

I

Under federal and state law, a voter who appears to vote at the wrong precinct is entitled to cast a provisional ballot. 52 U.S.C. § 21082 ; A.R.S. § 16-584. In Arizona, these provisional ballots are placed in a tub and taken to a voting center. There, the voters’ addresses are compared with precinct geography. If a ballot was cast by a person who lives in the precinct where he or she voted, then it is counted. If the voter’s address was outside the precinct, the ballot is rejected in its entirety, even as to races and ballot measures for which the voter was entitled to cast a ballot. These races include Presidential,…