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…

Dissent by Judge O’SCANNLAIN;

Dissent by Judge BYBEE;

Dissent by Judge N.R. SMITH

ORDER

We granted, in a prior order, rehearing en bane 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 an injunction pending appeal is similar to that employed by district courts in déciding whether to grant a preliminary injunction. Lopez v. 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, 840 F.3d 1057, 1085-98 (9th Cir. 2016), a copy of which is attached (along with a…

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 east 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…

with whom Circuit Judges O’SCANNLAIN, CLIFTON, CALLAHAN, and N.R. SMITH join, dissenting:

I join in full Judge O’Scannlain’s dissent. I write separately to emphasize two brief points: First, Arizona’s restrictions on who may collect an early ballot — a question very different from who may vote by early ballot — follows closely the recommendation of the bipartisan Commission on Federal Election Reform. Second, the Arizona early ballot law at issue here is a common provision, and similar restrictions on the collection of early or absentee ballots may be found on the books of some twenty-one states. Those provisions have been in effect for decades, and they have been enforced. Unless the Voting Rights Act means that identical provisions are permissible in some states and impermissible in other states, our decision would invalidate many of those provisions, including provisions in other states of the Ninth Circuit.

I

There is no constitutional or federal statutory right to vote by absentee ballot. See McDonald v. Bd. of Election Comm’rs of Chic., 394 U.S. 802, 807-08 , 89 S.Ct. 1404 , 22 L.Ed.2d 739 (1969) (“It is thus not the right to vote that is at stake here but a claimed right…