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. 16-16865

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; DEBBIE LESKO; TONY

RIVERO; BILL GATES; SUZANNE

KLAPP,

Intervenor-Defendants- Appellees.

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

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

WATFORD, and OWENS, Circuit Judges.

PER CURIAM:

En banc oral argument will take place during the week of January 17, 2017,

in San Francisco, California. The date and time will be determined by separate

order. Plaintiffs’ motion for an injunction pending appeal is DENIED.

In this action, plaintiffs challenge the provisions of Arizona law that

precludes counting ballots that are cast outside of the voter’s designated precinct,

even when those ballots include races and ballot measures for which the voter is

2 eligible and qualified to vote. Plaintiffs argue that this procedure violates the

Voting Rights Act of 1965, and the Fourteenth Amendment to the Constitution.

The district court denied the plaintiffs’ request for a preliminary injunction.

A divided three judge panel affirmed the district court’s order. A majority of the

non-recused active judges then voted to rehear this case en banc.

En banc argument will be confined to the question of whether or not a

preliminary injunction should issue as to future elections. The en banc court will

not consider whether or not out-of-precinct votes should be counted in the pending

general election. Current Arizona election law, practices, and procedures as to out-

of-precinct voting will be fully applicable to this election. The en banc court

declines to issue any order that would potentially disrupt procedures in the

upcoming election. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam).

For further information or special requests regarding scheduling, please

contact Deputy Clerk Paul Keller at paul_keller@ca9.uscourts.gov or (206) 224-

2236.

Within seven days from the date of this order, the parties shall forward to the

Clerk of Court twenty-five additional paper copies of the original briefs and twelve

additional paper copies of the excerpts of record. The paper copies must be

accompanied by certification (attached to the end of each copy of the brief) that the

3 brief is identical to the version submitted electronically. A sample certificate is

available at

http://www.ca9.uscourts.gov/datastore/uploads/cmecf/Certificate-for-Brief-in-

Paper-Format.pdf. The paper copies shall be printed from the PDF version of the

brief created from the word processing application, not from PACER or Appellate

ECF. FILED

NOV 04 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

THOMAS, Chief Judge, concurring in part, and dissenting in part, with whom W. FLETCHER, RAWLINSON, AND MURGUIA, Circuit Judges, join:

I agree that this appeal should be reheard en banc for the reasons stated in

my dissent. Feldman v. Arizona Sec’y of State, 2016 WL 6472060, at *10–21 (9th

Cir. 2016) (Thomas, J., dissenting). The issues presented are important for both the

present and future elections.

However, I would hold argument and decide the appeal prior to the

certification of results for the present election. As I explained in my dissent,

qualified voters have been, and will continue to be, disenfranchised by Arizona’s

refusal to count legitimate ballots cast out-of-precinct. There is no reason why

4 these legitimate votes should not be counted in this election, particularly when the

votes are collected and available for election officials to tabulate.

5