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Feldman v. Arizona Secretary of State's Office

United States District Court, D. Arizona

September 23, 2016

Leslie Feldman, et al., Plaintiffs,
Arizona Secretary of State's Office, et al., Defendants.



         Plaintiffs are Leslie Feldman, Luz Magallanes, Mercedez Hymes, Julio Morera, and Cleo Ovalle, Democrats and registered voters in Maricopa County, Arizona; Peterson Zah, former Chairman and First President of the Navajo Nation, and a registered voter in Apache County, Arizona; the Democratic National Committee; the Democratic Senatorial Campaign Committee; the Arizona Democratic Party (ADP); Kirkpatrick for U.S. Senate, a committee supporting the election of Democratic United States Representative Ann Kirkpatrick to the United States Senate; and Hillary for America, a committee supporting the election of Democratic candidate Hillary Clinton as President of the United States. Plaintiff-Intervenor is Bernie 2016, Inc., a committee that supported the election of former Democratic candidate Bernie Sanders as President of the United States. The Court will refer to these parties collectively as “Plaintiffs.”

         Defendants are the Arizona Secretary of State's Office; Arizona Secretary of State Michele Reagan, in her official capacity; the Maricopa County Board of Supervisors; Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, and Steve Gallardo, members of the Maricopa County Board of Supervisors, in their official capacities; the Maricopa County Recorder and Elections Department; Maricopa County Recorder Helen Purcell, in her official capacity; Maricopa County Elections Director Karen Osborne, in her official capacity; and Arizona Attorney General Mark Brnovich, in his official capacity. Defendant-Intervenor is the Arizona Republican Party (ARP).[1]

         At issue is Plaintiff's Motion for Preliminary Injunction of H.B. 2023. (Doc. 84.) Also before the Court is the Motion to Strike Portions of Plaintiffs' Reply Memorandum and Reply Exhibits filed jointly by Defendants and the ARP. (Doc. 167.) The motions are fully briefed, and the Court heard oral argument on August 3, 2016. For the following reasons, both motions are denied.


         In addition to voting at polling places on Election Day, Arizona permits both in-person and absentee early voting during the 27 days before an election. A.R.S. § 16-541. For those who prefer to vote in person, all Arizona counties operate at least one on-site early voting location. (Doc. 153-1 at 9, ¶ 15.) Arizonans may also vote early by mail either by requesting an early ballot on an election-by-election basis or by joining the Permanent Early Voting List (PEVL). A.R.S. §§ 16-542, 16-544. Permanent early voters automatically receive early ballots for every election by mail no later than the first day of the early voting period. To be counted, an early ballot must be received by the county recorder by 7:00 pm on Election Day. A.R.S. § 16-548. Voters may return their early ballot by mail at no cost, but they must mail it early enough to ensure that it is received by this deadline. Additionally, some counties provide special drop boxes for early ballots, and voters in all counties may return their ballots in person at any polling place without waiting in line. (Doc. 153-1 at 10, ¶¶ 16-17.)

         In 2016, Arizona enacted H.B. 2023, now codified at A.R.S. § 16-1005(H)-(I), which limits who may possess another's early ballot. H.B. 2023 provides:

H. A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony. An election official, a United States postal service worker or any other person who is allowed by law to transmit United States mail is deemed not to have collected an early ballot if the official, worker or other person is engaged in official duties.
I. Subsection H of this section does not apply to:
1. An election held by a special taxing district formed pursuant to title 48 for the purpose of protecting or providing services to agricultural lands or crops and that is authorized to conduct elections pursuant to title 48.
2. A family member, household member or caregiver of the voter. For the purposes of this paragraph:
(a) “Caregiver” means a person who provides medical or health care assistance to the voter in a residence, nursing care institution, hospice facility, assisted living center, assisted living facility, assisted living home, residential care institution, adult day health care facility or adult foster care home.
(b) “Collects” means to gain possession or control of an early ballot.
(c) “Family member” means a person who is related to the voter by blood, marriage, adoption or legal guardianship.
(d) “Household member” means a person who resides at the same residence as the voter.

A.R.S. § 16-1005(H)-(I). Subsequently, Plaintiffs brought this lawsuit challenging H.B. 2023 under the Voting Rights Act (VRA) of 1965 and the First and Fourteenth Amendments to the United States Constitution. (Doc. 12; Doc. 53.) Specifically, they argue that H.B. 2023 violates § 2 of the VRA because it disparately burdens the electoral opportunities of Hispanic, Native American, and African American voters as compared to white voters. (Doc. 85 at 12-15.) They also argue that H.B. 2023 violates the First and Fourteenth Amendments by unjustifiably burdening voting, generally, and the associational rights of organizations that collect ballots as part of their get-out-the-vote (GOTV) efforts. (Id. at 15-18.) Finally, Plaintiffs argue that H.B. 2023 violates the First and Fourteenth Amendments under a “partisan fencing” theory because the law allegedly was intended to suppress Democratic voters. (Id. at 18-20.) Plaintiffs now move to preliminarily enjoin Arizona from enforcing the law pending the outcome of this litigation. (Doc. 84.)


         I. Standing

         As a threshold matter, the ARP argues that Plaintiffs lack standing to challenge H.B. 2023 because “no individual Plaintiff or member of an associational Plaintiff asserts any reliance on ballot collection to vote.” (Doc. 152 at 2, n.1.) Standing derives from Article III of the United States Constitution, which limits federal courts to resolving “Cases” and “Controversies.” To have standing, a plaintiff “must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact' that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int'l, Inc. v. Static Control Components, Inc., __U.S.__, 134 S.Ct. 1377, 1386 (2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Only one plaintiff needs to have standing when only injunctive relief is sought. Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff'd, 553 U.S. 181, 189 n.7 (2008).

         The ADP alleges that collecting early ballots has been an integral part of its GOTV strategy since at least 2002 and that, as a result of H.B. 2023, it “will have to devote resources that it otherwise would have spent educating voters about its candidates and issues, to assisting its voters in overcoming the barriers the challenged voting laws, practices, and procedures impose[.]” (Doc. 12, ¶ 28; Doc. 157, ¶¶ 6-9.) Additionally, the ADP alleges that H.B. 2023 will reduce the likelihood that its voters will timely return their ballots, thereby reducing the likelihood that the ADP will be successful in electing Democratic candidates. (Doc. 12, ¶ 28; Doc. 157, ¶ 5.) These allegations are sufficient to establish a concrete and particularized injury in fact that is fairly traceable to H.B. 2023 and likely to be redressed by a favorable ruling on Plaintiffs' preliminary injunction motion. See Crawford, 472 F.3d at 951 (“Thus the new law injures the Democratic Party by compelling the party to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote.”); One Wisconsin Inst., Inc. v. Nichol, __F.Supp.3d__, No. 15-CV-324-JDP, 2016 WL 2757454, at *6 (W.D. Wis. May 12, 2016) (finding expenditure of resources for educating voters about how to comply with new state voter registration requirements sufficient to establish standing). Because the ADP has standing to challenge the validity of H.B. 2023, it is unnecessary to assess whether the other Plaintiffs have standing.

         II. Motion to Strike

         Defendants and the ARP have moved to strike portions of Plaintiffs' reply memorandum and reply exhibits. (Doc. 167.) Specifically, they have moved to strike: (1) portions of the rebuttal report of Plaintiffs' expert Dr. Allan Lichtman; (2) declarations from Sheila Healy, Steven Begay, Ernesto Teran, and Carmen Arias; (3) the Department of Justice (DOJ) preclearance file for S.B. 1412, an early effort by Arizona to regulate ballot collection; and (4) those portions of Plaintiffs' reply memorandum that rely on the offending exhibits. (Id. at 2.) Having reviewed the objected-to portions of Dr. Lichtman's rebuttal report, the Court finds that they respond to arguments raised by the ARP's expert witnesses. Likewise, the additional declarations respond to the ARP's standing arguments. Finally, Plaintiffs have shown good cause for the delayed disclosure of the DOJ preclearance file. Despite requesting a copy of the file through a Freedom of Information Act (FOIA) request, Plaintiffs did not receive a readable version until the day before the response briefs were due. Although Defendants and the ARP fault Plaintiffs for not disclosing the file at that time, they fail to explain how they have been prejudiced by the delay. Neither Defendants nor the ARP articulate what they would or could have done differently had they received the DOJ file the day before their response brief was due. Moreover, oral argument provided Defendants and the ARP with an opportunity to respond to this new evidence. Lastly, the Court must assess the likelihood that Plaintiffs with succeed on the merits of their claims. It would disserve that end for the Court to blind itself to evidence that eventually would be presented in a summary judgment motion or at trial. For these reasons, the motion to strike is denied.


         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20.

         I. Likelihood of Success on the Merits

         A. Section 2 of the VRA

         Section 2 prohibits states from imposing any voting qualification, prerequisite, standard, practice, or procedure that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color[.]” 52 U.S.C. § 10301(a). “A violation . . . is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation” by racial minorities, in that they “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b).

Although proving a violation of § 2 does not require a showing of discriminatory intent, only discriminatory results, proof of a causal connection between the challenged voting practice and a prohibited result is crucial. Said otherwise, a § 2 challenge based purely on a showing of some relevant statistical disparity between minorities and whites, without any evidence that the challenged voting qualification causes that disparity, will be rejected.

Gonzales v. Arizona, 677 F.3d 383, 405 (9th Cir. 2012) (internal quotations and citations omitted).

         In Thornburg v. Gingles, the Supreme Court cited a list of non-exhaustive factors that courts should consider when determining whether, under the totality of the circumstances, a challenged voting practice interacts with social and historical conditions to cause a disparity between the electoral opportunities of minority and white voters.[2] 478 U.S. 30 (1986). These factors include:

1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision ...

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