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
“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-Intervenors are the Arizona Republican Party (ARP),
Arizona state lawmakers Debbie Lesko and Tony Rivero, Phoenix
City Councilman Bill Gates, and Scottsdale City Councilwoman
Suzanne Klapp. At issue is Plaintiff's Motion for
Preliminary Injunction on Provisional Ballot Claims. (Doc.
72.) The motion is fully briefed, and the Court heard oral
argument on September 2, 2016. For the following reasons, the
motion is denied.
at least 1970, Arizona has required voters to cast ballots in
their assigned precinct and has enforced this system by
counting only those ballots cast in the correct precinct.
(Doc. 180-2 at 115-16); A.R.S. §§ 16-122, 16-584.
Because elections involve many different overlapping
jurisdictions, this precinct-based system ensures that each
voter receives a ballot reflecting only the races for which
that person is entitled to vote based on his or her
residential address. (Doc. 177-1 at 10.) If a voter arrives
at a precinct but does not appear on the precinct register,
Arizona allows the voter to cast a provisional ballot. A.R.S.
§§ 16-135, 16-584. This may occur, for example, if
a voter recently moved but did not notify the county recorder
of the change of address before the election. If the
voter's current address is determined to be within the
precinct, the provisional ballot is counted. Arizona does
not, however, count provisional ballots cast out of the
voter's correct precinct (OOP ballots).
2011, Arizona amended its elections code to allow counties to
use vote centers if deemed appropriate. A.R.S. §
16-411(B). Vote centers are equipped to print a specific
ballot for each voter that includes all races for which that
person is eligible to vote based on his or her residential
address. (Doc. 178-2, ¶ 13; Doc. 180-1 at 126; Doc.
180-2 at 3-4.) Thus, under a vote center system, voters may
cast their ballots at any vote center in the county in which
they reside and receive the appropriate ballot. A.R.S. §
16-411(B)(4). Maricopa County experimented with a vote center
system during the 2016 Presidential Preference Election.
(Doc. 178-3, ¶ 17.) The only other Arizona counties that
have used vote centers for countywide elections are Graham,
Yavapai, and Yuma. (Doc. 180-2 at 8.)
brought this lawsuit in April 2016 challenging Arizona's
rejection of OOP ballots under the Voting Rights Act of 1965
(VRA) and the Fourteenth Amendment to the United States
Constitution. (Doc. 12; Doc. 53.) Specifically, Plaintiffs
argue that Arizona's rejection of OOP ballots violates
§ 2 of the VRA because it disparately impacts the
electoral opportunities of Hispanic, Native American, and
African American voters as compared to white voters, and
violates the Fourteenth Amendment by unjustifiably burdening
voting rights. (Doc. 73.) They also argue that Arizona
arbitrarily treats similarly situated voters differently
based solely on whether they reside in a county that
administers elections under a precinct-based system as
opposed to a vote center model. (Id.) Plaintiffs
have moved to preliminarily enjoin Arizona from rejecting OOP
ballots in their entirety. (Doc. 72.) They do not seek an
order requiring all counties to use vote centers or to count
OOP ballots for all races. Rather, Plaintiffs seek a
mandatory preliminary injunction preventing Arizona from
rejecting OOP ballots for the races in which the voter is
eligible to vote. (Doc. 192 at 7.)
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. These elements may be balanced on a sliding scale,
whereby a stronger showing of one element may offset a weaker
showing of another. See Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131, 1134-35 (9th Cir. 2011).
However, the sliding-scale approach does not relieve the
movant of the burden to satisfy all four prongs for the
issuance of a preliminary injunction. Id. at 1135.
When “a party seeks mandatory preliminary relief that
goes well beyond maintaining the status quo pendente
lite, courts should be extremely cautious about issuing
a preliminary injunction.” Martin v. Int'l
Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984).
Generally, “mandatory injunctions are not granted
unless extreme or very serious damage will result and are not
issued in doubtful cases[.]” Marlyn Nutraceuticals,
Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879
(9th Cir. 2009) (internal quotation and citation omitted).
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 is racially polarized;
3. the extent to which the state or political subdivision has
used unusually large election districts, majority vote
requirements, anti-single shot provisions, or other voting
practices or procedures that may enhance the opportunity for
discrimination against the minority group;
4. if there is a candidate slating process, whether the
members of the minority group have been denied access to that
5. the extent to which members of the minority group in the
state or political subdivision bear the effects of
discrimination in such areas as education, employment and
health, which hinder their ability to ...