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. 16-16865

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…

*1164 ORDER

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 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…

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, 842 F.3d 613, 628-41 , 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 these legitimate votes should not be counted in this election, paiticularly when the votes are collected and available for election officials to tabulate.