United States District Court, D. Arizona
DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE.
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
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
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.
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.)
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
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
(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.)
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).
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
Motion to Strike
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.
FOR PRELIMINARY INJUNCTION
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
Likelihood of Success on the Merits
Section 2 of the VRA
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).
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. 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 ...