NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 1 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSICA MIRACLE; et al., No. 19-17513

Plaintiffs-Appellants, D.C. No. 2:19-cv-04694-SRB

v.

MEMORANDUM*

KATIE HOBBS, in her official capacity as Arizona Secretary of State,

Defendant-Appellee,

STATE OF ARIZONA,

Intervenor.

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Argued and Submitted April 17, 2020 San Francisco, California

Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,** Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. Plaintiffs Jessica Miracle, et. al., a group of petition signers, circulators,

sponsors and initiative proponents (collectively, “Plaintiffs”) brought this action

against the Arizona Secretary of State.1 Plaintiffs’ complaint alleged that a law

invalidating signatures in favor of an initiative petition if a registered circulator

failed to respond to a properly served subpoena (the “Strikeout Law”) violated their

rights under the First and Fourteenth Amendments. Plaintiffs also sought a

preliminary injunction to enjoin enforcement of the law, which has been in effect

since 2014. The district court denied the motion for preliminary injunction, which

is the subject of this appeal. We affirm.

We review the denial of a preliminary injunction for an abuse of discretion.

Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003)

(en banc). “Our review is limited and deferential.” Id. Plaintiffs seeking a

preliminary injunction must establish they are likely to succeed on the merits, that

they are likely to suffer irreparable harm in the absence of preliminary relief, that

the balance of equities tips in their favor, and that an injunction is in the public

interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). A plaintiff must

make a showing on all four prongs of the Winter test to obtain a preliminary

1 The Secretary of State is now a nominal defendant only, and the State of Arizona has intervened and taken on the defense of the case.

2 injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.

2011).2

The district court concluded that even if Plaintiffs had established a possibility

of success on the merits, they failed to satisfy the remainder of the test, especially

with information sufficient to justify disturbing the status quo pending the outcome

of the litigation. We find no abuse of discretion in this determination.

We express no opinion on the underlying merits of Plaintiffs’ claims. See

Winter, 555 U.S. at 31. Assuming without deciding that Plaintiffs have raised

“serious questions” as to the merits at least with respect to their content-based claim,

they have failed to satisfy the remaining requirements for a preliminary injunction.

The affidavits proffered below support only speculative injury. To the extent that

Plaintiffs contend speech will be chilled if the Strikeout Law is left in place, the

majority of circulators’ affidavits indicate at most that they might be hesitant to work

on petitions in the future; likewise, the initiative proponents do not indicate that they

are dissuaded from trying to place initiatives on the ballots, but instead that they will

plan to dedicate resources to ensure circulators appear in court if subpoenaed.

2 So long as the other Winter requirements are satisfied, a plaintiff may also obtain a preliminary injunction by demonstrating “serious questions” going to the merits and that the balance of hardships tips sharply in the plaintiff’s favor. Alliance, 632 F.3d at 1134–35 (citation omitted).

3 Moreover, circulators cannot consider being called to testify “an injury,” as

they have already agreed to consent to the state’s jurisdiction in any action pertaining

to signatures they collected, pursuant to a law they do not challenge. See A.R.S. §

19-118(A)–(B). Thus, the Strikeout Law imposes no new burden on them, only a

new penalty for failure to appear. Any injury from signatures being stricken, on this

record, is also quite speculative, as it would occur only if there was a court challenge,

and if a circulator were properly served but failed to appear, and if the loss of that

circulator’s signatures caused the initiative to fail to qualify for the ballot.

In addition, the likelihood of irreparable harm is further tempered by the

availability of various other remedies if a circulator is unable to physically appear,

including motions to quash the subpoena and motions to appear telephonically. In

at least one initiative challenge since the Strikeout Law went into effect, the Arizona

state trial court granted every such motion by an individual circulator. The

likelihood of imminent and irreparable harm is further undermined by the length of

time between the enactment of the Strikeout Law in 2014 to filing suit in July 2019,

thus allowing the law to remain in place for multiple election cycles. This delay

“implies a lack of urgency and irreparable harm.” Oakland Tribune, Inc. v.

Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985).

As the district court also noted, the final considerations of the public interest

and balance of equities cut both ways: the public interest is served by free and

4 unchilled speech but the public also wants guarantees of a fair and fraud-free

election, and a state “indisputably has a compelling interest in preserving the

integrity of its election process.” Eu v. San Francisco Cty. Democratic Cent.

Comm., 489 U.S. 214, 231 (1989). Thus, the balance of equities lies in equipoise

and does not tip in plaintiffs’ favor. Cf. Winter, 555 U.S. at 25–26.

Furthermore, as the district court also recognized, the injunction Plaintiffs

seek would alter, rather than preserve, the status quo. This type of injunctive relief

is disfavored unless there is a very strong showing in favor of the moving party.

Oakland Tribune, 762 F.2d at 1377 (“Where no new harm is imminent, and where

no compelling reason is apparent, the district court was not required to issue a

preliminary injunction against a practice which has continued unchallenged for

several years.”).

For the foregoing reasons, at this stage of the litigation, an injunction is not

appropriate. “We underscore that we express no opinion here on the correct

disposition, after full briefing and argument, . . . on the ultimate resolution of [this

case]. As we have noted, . . . no bright line separates permissible election-related

regulation from unconstitutional infringements.” Purcell v. Gonzalez, 549 U.S. 1, 5

(2006) (internal quotation marks, alteration, and citation omitted).

AFFIRMED.3

3 The State’s Renewed Suggestion of Partial Mootness [Dkt. # 49] is denied.

5