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Feldman v. Arizona Secretary of State's Office

United States District Court, D. Arizona

October 11, 2016

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


          Douglas L. Rayes United States District Judge

         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-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.[1]


         Since 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).

         In 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.)

         Plaintiffs 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.)


         “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. 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).


         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 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 process;
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 ...

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