United States District Court, D. Arizona
Democratic National Committee, DSCC, and Arizona Democratic Party, Plaintiffs,
v.
Michele Reagan and Mark Brnovich, Defendants.
AMENDED FINDINGS OF FACT AND CONCLUSIONS OF
LAW [1]
Douglas L. Rayes, United States District Judge
Plaintiffs
challenge two aspects of Arizona's election system: (1)
Arizona's policy to not count provisional ballots cast in
the wrong precinct, which derives from the collective effect
of A.R.S. §§ 16-122, -135, -584, and related rules
in the Arizona Election Procedures Manual; and (2) Arizona
House Bill 2023 (“H.B. 2023”), codified at A.R.S.
§ 16-1005(H)-(I), which makes it a felony for anyone
other than the voter to possess that voter's early mail
ballot, unless the possessor falls within a statutorily
enumerated exception. Plaintiffs allege that the challenged
laws violate § 2 of the Voting Rights Act of 1965
(“VRA”) by adversely and disparately impacting
the electoral opportunities of Hispanic, African American,
and Native American Arizonans, who Plaintiffs claim are among
their core constituencies. Plaintiffs also contend that these
provisions violate the First and Fourteenth Amendments to the
United States Constitution by severely and unjustifiably
burdening voting and associational rights. Lastly, Plaintiffs
claim that H.B. 2023 violates § 2 of the VRA and the
Fifteenth Amendment to the United States Constitution because
it was enacted with the intent to suppress voting by Hispanic
and Native American voters. (Doc. 360 at 4-7.)[2] Plaintiffs seek
(1) a declaration that the challenged election practices are
unlawful and (2) a permanent injunction requiring Defendants
to partially count out-of-precinct (“OOP”)
provisional ballots for races for which the voter otherwise
was eligible to cast a vote and enjoining Defendants from
implementing, enforcing, or giving any effect to H.B. 2023.
(Doc. 233 at 41-42.)
The
Court presided over a ten-day bench trial beginning October
3, 2017 and ending October 18, 2017. Pursuant to Federal Rule
of Civil Procedure 52, and for the following reasons, the
Court finds against Plaintiffs and in favor of Defendants on
all claims.[3]
I.
PARTIES
Plaintiffs
are the Democratic National Committee (“DNC”),
the Democratic Senatorial Campaign Committee
(“DSCC”), and the Arizona Democratic Party
(“ADP”). The DNC is a national committee
dedicated to electing local, state, and national candidates
of the Democratic Party to public office. The DSCC is a
Democratic political committee dedicated to encouraging the
election of Democratic Senate candidates to office and is
comprised of sitting Democratic members of the United States
Senate. The ADP is a state committee dedicated to electing
candidates of the Democratic Party to public office
throughout Arizona.
Defendants
are Arizona Secretary of State Michele Reagan and Arizona
Attorney General Mark Brnovich. Secretary Reagan is
Arizona's chief elections officer. Attorney General
Brnovich is Arizona's chief legal officer, charged with
enforcing state criminal statutes, including H.B. 2023 and
other election-related offenses. Secretary Reagan drafts, and
Attorney General Brnovich (in conjunction with the Governor
of Arizona) approves, the Election Procedures Manual. A.R.S.
§§ 41-191 et seq, 16-1021, -452.
The
Court also permitted the following parties to intervene as
defendants: (1) the Arizona Republican Party
(“ARP”), a state committee dedicated to electing
candidates of the Republican Party to public office; (2)
Debbie Lesko, who at the time of intervention was an Arizona
State Senator representing Arizona's 21st legislative
district and Precinct Committeewoman for Arizona's 21st
legislative district, and who recently was elected to
represent Arizona's 8th congressional district in the
United States House of Representatives; (3) Tony Rivero, a
member of the Arizona House of Representatives representing
Arizona's 21st legislative district; (3) Bill Gates, who
at the time of intervention served as a City of Phoenix
Councilman and Precinct Committeeman for Arizona's 28th
legislative district, and who now serves as a member of the
Maricopa County Board of Supervisors representing district 3;
and (4) Suzanne Klapp, a City of Scottsdale Councilwoman and
Precinct Committeewoman for Arizona's 23rd legislative
district. (Docs. 39, 44, 56, 126.)
II.
OVERVIEW OF TRIAL TESTIMONY
A.
Plaintiffs' Expert Witnesses
1.
Dr. Allan Lichtman
Dr.
Allan Lichtman is a Distinguished Professor of History at
American University in Washington, D.C., where he has been
employed for 42 years. Dr. Lichtman formerly served as Chair
of the History Department and Associate Dean of the College
of Arts and Sciences at American University. He received his
B.A. in History from Brandeis University in 1967 and his
Ph.D. in History from Harvard University in 1973, with a
specialty in the mathematical analysis of historical data.
Dr. Lichtman's areas of expertise include political
history, electoral analysis, and historical and quantitative
methodology. (Ex. 91 at 3-4.)
Dr.
Lichtman has worked as a consultant or expert witness for
plaintiffs and defendants in more than 80 voting and civil
rights cases, including League of United Latin American
Citizens (LULAC) v. Perry, 548 U.S. 399 (2006), in which
Justice Kennedy's majority opinion authoritatively cited
Dr. Lichtman's statistical work. Dr. Lichtman also has
testified several times for plaintiffs and defendants on
issues of intentional discrimination and application of
Section 2 in VRA cases. (Ex. 91 at 4.)
Dr.
Lichtman opined, generally, that under the totality of the
circumstances H.B. 2023 causes minority voters to have less
opportunity to participate in the political process than
non-minority voters, and that the law was passed with the
intent to suppress minority voters.[4] He supported his opinions
with the standard sources used in political and historical
analysis, including scholarly books, articles, reports,
newspapers, voter registration and turnout data, and
scientific surveys.
Dr.
Lichtman's underlying sources, research, and statistical
information are useful. The surveys and data he supplied
reveal significant socioeconomic disparities between
non-minorities and minorities, including in areas of poverty,
unemployment, education, transportation, and health. (Ex. 91
at 3-4.) His report also contains evidence that Arizona
exhibits racially polarized voting and has a history of
racial appeals in political campaigns that continue to this
day. (Ex. 91 at 30, 44-45.) Dr. Lichtman opined that the
strong ties between race and partisanship in Arizona make
targeting minorities the most effective and efficient way for
Republicans to advance their political prospects. (Ex. 93 at
4-5.)
Although
the Court finds Dr. Lichtman's curation of material facts
surrounding the legislative history and his underlying
research to be helpful and reliable, the Court did not find
Dr. Lichtman's ultimate opinions useful. Dr. Lichtman
applied the law as he interpreted it to the data he
assembled. In this respect, his opinions presented more like
an attorney's closing argument than an objective analysis
of data, and the credibility of his trial testimony was
undermined by his seeming effort to advocate a position
rather than answer a question. Moreover, applying law to
facts is this Court's duty, and it is one the Court can
do without the assistance of an expert opining on how he
interprets the law and thinks it should be applied. The Court
also has not considered Dr. Lichtman's opinions on the
ultimate issue of legislative intent, both because this issue
is not the proper subject of expert testimony and because it
invades the province of the Court.
2.
Dr. David Berman
Dr.
David Berman is a Professor Emeritus of Political Science and
a Senior Research Fellow at the Morrison Institute for Public
Policy at Arizona State University. As a political science
professor, he has taught undergraduate survey courses in
American government and politics, state and local politics,
and Arizona government and politics, as well as more
specialized courses, including undergraduate seminars on
Arizona politics during which students interacted with state
and local office holders and political participants. He has
also taught advanced graduate courses focusing on research
methods in these areas. (Ex. 89 at 3.)
As a
Senior Research fellow with the Morrison Institute, Dr.
Berman specializes in research and writing on governance and
election issues in Arizona, including redistricting, direct
democracy, and campaign finance. He has been a professor at
Arizona State University since 1966, and his previous work
experience was as a Research Associate at the National League
of Cities in Washington, D.C. from 1964 to 1966. (Ex. 89 at
3-4.)
Dr.
Berman opined that Arizona has a long history of
discrimination against the voting rights of Native Americans,
Hispanics, and African Americans, and that this
discrimination is part of a more general pattern of
political, social, and economic discrimination against
minority groups in areas such as school segregation,
educational funding and programming, equal pay and the right
to work, and immigration.
The
Court finds Dr. Berman credible. His opinions were
well-researched and rendered using standard sources and
methodologies in his field of expertise, and his sources were
well-identified. Dr. Berman has authored ten books and over
70 published papers, book chapters, or refereed articles
dealing with state and local government, politics, and public
policy, and his opinions were based substantially on these
prior works. In particular, Dr. Berman drew heavily upon his
book Arizona Politics and Government: The Quest for
Autonomy, Democracy, and Development (University of
Nebraska Press, 1998) and his review of archival papers and
collections. (Ex. 89 at 3-4.) The Court affords great weight
to Dr. Berman's opinions.
3.
Dr. Jonathan Rodden
Dr.
Jonathan Rodden is a tenured Professor of Political Science
at Stanford University and the founder and director of the
Stanford Spatial Social Science Lab, a center for research
and teaching with a focus on the analysis of geo-spatial data
in the social sciences. Students and faculty members
affiliated with the lab are engaged in a variety of research
projects involving large, fine-grained, geo-spatial data
sets, including individual records of registered voters,
Census data, survey responses, and election results at the
level of polling. Prior to joining the Stanford faculty, Dr.
Rodden was the Ford Professor of Political Science at the
Massachusetts Institute of Technology. He received his Ph.D.
from Yale University and his B.A. from the University of
Michigan, Ann Arbor, both in political science. (Ex. 95 at
5-6.)
Dr.
Rodden has expertise in the use of large data sets and
geographic information systems to analyze aspects of
political representation. He has developed a national data
set of geo-coded precinct-level election results that has
been used extensively in policy-oriented research related to
redistricting and representation. He also has worked
extensively with Census data from the United States and other
countries.
Dr.
Rodden has published papers on political geography and
representation in a variety of academic journals and has been
featured in popular publications like the Wall Street
Journal, the New York Times, and Boston Review. Dr. Rodden
has testified as an expert witness in three recent election
law cases. (Ex. 95 at 6.)
Here,
Dr. Rodden analyzed the rates and causes of OOP voting in
Arizona during the 2012, 2014, and 2016 general elections.
The Court finds his use of a combination of individual-level
and aggregate data analyses, both of which have been accepted
in previous cases analyzing questions under the VRA, to be
valid and generally trustworthy, and affords them great
weight. (Ex. 97 at 7-9.)
Dr.
Rodden found that Hispanic, Native American, and African
American voters cast OOP ballots at statistically higher
rates than their non-minority counterparts. (Ex. 95 at 3-4;
Ex. 97 at 2-4.) Focusing on Maricopa County in the 2012
election, Dr. Rodden found that the rate of OOP voting was
“131 percent higher for Hispanics, 74 percent higher
for African Americans, and 39 percent higher for Native
Americans than whites.” (Ex. 95 at 3-4.)
Further,
Dr. Rodden found that OOP voters are substantially more
likely to be young and to live in neighborhoods characterized
by large numbers of renters and with high rates of
transience, and that the rate of OOP voting was 65 percent
higher for Democratic voters than for Republican voters in
Maricopa County, and 56 percent higher in Pima County. Dr.
Rodden found that “changes in polling place locations
are associated with higher rates of out-of-precinct voting,
” and that “African Americans and Hispanics are
substantially more affected by this than whites. In
particular, the impact of precinct consolidation, while
statistically significant for all groups, is more than twice
as large for Hispanics and African Americans as for
non-Hispanic whites.” (Ex. 95 at 3-4.) When analyzing
Arizona's non-metropolitan counties, Dr. Rodden found
that OOP voting is “negligible in majority-white
precincts, but increases dramatically in precincts where
Hispanics and Native Americans make up majorities.”
(Ex. 96 at 58.)
In
addition to his analysis of OOP voting, Dr. Rodden employed
standard and accepted methods in his field to analyze the
“mailability” of Arizona's non-metropolitan
counties in order to estimate the populations that likely
would be most affected by H.B. 2023's ballot collection
restrictions. Though somewhat imprecise, the Court finds his
method of analysis to be creative given the lack of direct
data available on the subject, generally reliable, and based
on sufficient data given the circumstances. Dr. Rodden found
that “[o]utside of Maricopa and Pima counties”
“around 86 percent of non-Hispanic whites have home
mail service, ” but “only 80 percent of Hispanics
do, and only 18 percent of Native Americans have such
access.” (Ex. 97 at 4.)
Dr.
Rodden's error rate is unknown, however, due to the lack
of direct data. Also, his analysis did not include
Arizona's metropolitan counties and therefore does not
reveal whether, on a statewide basis, minorities have
disparate access to home mail service as compared to
non-minorities. Further, mail access is an imprecise proxy
for determining the number and demographics of voters who use
or rely on ballot collection services. Simply because a voter
lacks home mail access does not necessarily mean that she
uses or relies on a ballot collector to vote, let alone a
ballot collector who does not fall into one of H.B.
2023's exceptions. Accordingly, although Dr. Rodden's
analysis provided useful insight into home mail access in
non-metropolitan counties, the Court is mindful of its
limitations and affords these opinions moderate weight.
B.
Plaintiffs' Lay Witnesses
Plaintiffs
called the following lay witnesses to testify at trial:
Carmen Arias, Michael Blair, Delilah Correa, Charlene
Fernandez, LeNora Fulton, Steve Gallardo, Kate Gallego,
Kathleen Giebelhausen, Marva Gilbreath, Leah Gillespie,
Carolyn Glover, Leonard Gorman, Shari Kelso, Scott Konopasek,
Joeseph Larios, Daniel Magos, Lori Noonan, Patrick
O'Connor, Martin Quezada, Nellie Ruiz, Spencer Scharff,
Sam Shaprio, Ken Clark, and John Powers. These witnesses
include individual voters, representatives from state,
county, and municipal governments, community advocates who
have collected ballots as part of get-out-the-vote
(“GOTV”) efforts, community advocates focusing of
Native American issues, Democratic Party operatives, a
California state elections official, and a former United
States Department of Justice (“DOJ”) official.
C.
Defendants' Expert Witnesses
1.
Dr. Donald Critchlow
Dr.
Donald Critchlow works at Arizona State University as the
Director of the Center for Political Thought and Leadership,
an organization funded by a grant from the Charles Koch
Foundation. (Tr. 1533-37.) He opined on the relationship
between racial discrimination and voting in Arizona. Dr.
Critchlow made credible observations that discrimination in
Arizona has not been linear and that Arizona has taken
effective action to combat discrimination and encourage
participation in voting.
With
that said, Dr. Critchlow has never published a book or
article focused specifically on Arizona history, nor has he
taught courses in Arizona history or politics. (Tr. 1531-32.)
Further, in many respects he offered one-sided opinions of
Arizona's history, ignored incidents of discrimination,
and failed to address the key political shift between the
Democratic and Republican parties during the Civil Rights
Movement. For example, he either was unfamiliar with or
totally discounted the Republican strategy of confrontation
of minority voters at the polls during “Operation Eagle
Eye” in the 1960s. (Ex. 89 at 16; Tr. 1549.)
Additionally, although Dr. Critchlow acknowledged that
Arizona has a history of discrimination, his report appears
to attribute past racial discrimination in Arizona only to
the Democratic Party and claims that discrimination has not
existed since the 1960s (in the Republican era). (Ex. 521 at
4.) For these reasons, the Court affords little weight to Dr.
Critchlow's opinions
2.
Sean Trende
Sean
Trende critiqued Dr. Lichtman's analysis of Arizona's
voting patterns and history of racial discrimination, but
offered no new information or analysis. Though the Court
found some of his criticisms worth considering, overall they
were insignificant. For example, although Trende generally
agreed with Dr. Lichtman that Arizona experiences racially
polarized voting, he made much of the irrelevant fact that
Arizona voting is not as racially polarized as voting in
Alabama. (Tr. 1837.) Additionally, Trende's opinions on
the weight to give certain evidence and on the proper
interpretation and application of the law and evidence-like
those of Dr. Lichtman's-were not helpful and invade the
province of the Court. Moreover, Trende does not have a Ph.D
and has never written a peer-reviewed article. He has spent
most of his professional career working as a lawyer or
political commentator. He is not a historian and says nothing
about the historical methods Dr. Lichtman utilized. (Tr.
1861-62.) For these reasons, the Court affords Trende's
opinions little weight.
3.
Dr. M.V. Hood
Dr.
M.V. Hood is a Professor of Political Science at the
University of Georgia. Dr. Hood responded to the reports of
Drs. Lichtman, Rodden, and Berman. (Ex. 522 at 2-3.) For a
number of reasons, the Court affords little weight to Dr.
Hood's opinions.
Dr.
Hood criticizes Dr. Berman's use of older historical
information. Yet Dr. Critchlow, another expert retained by
Defendants, agrees with Dr. Berman that older historical
information is relevant to understanding patterns. (Ex. 521
at 8-10; Ex. 522 at 11.) Moreover, Dr. Hood admitted at trial
that he examines historical information going back 50 to 200
years. (Tr. 2122-23.)
Dr.
Hood opined that H.B. 2023 does not hinder Native American
voting because the rates of early voting on the Navajo Nation
increased from 2012 to 2016. He based that opinion on early
votes cast in three counties. This opinion is not reliable.
Dr. Hood's analysis did not include an assessment of
racial disparities and turnout. He also conceded that myriad
factors could affect turnout. (Tr. 2111-14.)
Dr.
Hood prepared a cross-state comparative analysis of ballot
collection laws and policies related to counting OOP ballots.
Although his analysis offered some insight, it overall was
not useful because he did not address statutory differences
and nuances, and his analysis reflected an incomplete
understanding of the laws he categorized. For example, some
of the states he labeled as prohibiting ballot collection do
not have laws comparable to H.B. 2023 because they prohibit
only the delivery of the ballot, not the collection and
mailing of the ballot on someone else's behalf. (Ex. 92
at 52-53.)
The
Court also notes that Dr. Hood's testimony either has
been rejected or given little weight in numerous other cases
due to concerns over its reliability. See Ne. Ohio Coal.
for the Homeless v. Husted, No. 2:06-CV-896, 2016 WL
3166251, at *24 (S.D. Ohio June 7, 2016), aff'd in
part, rev'd in part, 837 F.3d 612 (6th Cir. 2016);
Veasey v. Perry, 71 F.Supp.3d 627, 663 (S.D. Tex.
2014); Frank v. Walker, 17 F.Supp.3d 837, 881-84
(E.D. Wis. 2014), rev'd on other grounds, 768
F.3d 744 (7th Cir. 2014); Fla. v. United States, 885
F.Supp.2d 299, 324 (D.D.C. 2012); Common Cause/Ga. v.
Billups, No. 4:05-cv-0201, 2007 WL 7600409, at *14
(N.D.Ga. Sept. 6, 2007). Additionally, most of Dr. Hood's
work has been as an expert on behalf of states defending
against allegations that their laws violated the Constitution
or the VRA. (Tr. 2123-25.)
4.
Dr. Janet Thornton
Dr.
Janet Thornton is a Managing Director at Berkeley Research
Group. Dr. Thornton did not conduct her own analysis, but
instead offered her opinion that Dr. Rodden's statistical
work is flawed. (Ex. 525 at 1.) For example, she challenged
Dr. Rodden's approaches to measuring racial disparities
in OOP voting. One approach uses individual surname data and
geographic coordinates to infer race. Among Dr.
Thornton's critiques was the presence of measurement
error, which is well-taken. Indeed, even Dr. Rodden concedes
measurement error exists, especially as it pertains to
African American probabilities. Dr. Thornton did not critique
the Hispanic probabilities assessed by Dr. Rodden, however,
and Dr. Rodden credibly explained that the measurement error
for Hispanic probabilities leads only to the under-estimation
of racial disparities.
The
second approach that Dr. Rodden employed relied on data
collected by the Census Department on race and ethnicity at
the lowest possible level of geographic aggregation. Dr.
Thornton's challenge to the aggregate approach was
neither about the data nor the presence of racial disparities
in OOP voting, but rather the statistical model employed by
Dr. Rodden. Dr. Rodden, however, credibly showed that results
similar to those reported by his analysis are obtained using
the alternative model specification or measurement strategies
recommended by Dr. Thornton.
Dr.
Thornton's opinion that there should have been a
systematic decline in the number of ballots cast in
Arizona's 13 non-metropolitan counties during 2016 if the
limits on ballot collection impacted the ability of rural and
minority persons to vote is simplistic and not credible. The
statistical evidence suggests that increased turnout in rural
counties for the 2016 election was driven by non-minority
voters, not Native American and Hispanic voters. (Ex. 98 at
21-26.) Moreover, many factors impact voter turnout,
including controversial candidates and partisan mobilization
efforts, all of which might drown out the potentially
deleterious effects of H.B. 2023. Overall, the Court finds
that Dr. Thornton's critiques do not significantly
undermine Dr. Rodden's opinions and therefore affords
them less weight.
D.
Defendants' Lay Witnesses
Defendants
called the following lay witnesses to testify at trial: Brad
Nelson, Eric Spencer, Helen Purcell, James Drake, Michael
Johnson, Michelle Ugenti-Rita, Amy Chan (formerly Amy
Bjelland), Tony Rivero, and Scott Freeman. These witnesses
include current and former lawmakers, elections officials,
and law enforcement officials.
E.
Witnesses Testifying By Deposition
In
addition to the live testimony, the following witnesses
testified by deposition: Sheila Healy, Randy Parraz, Samantha
Pstross, Secretary Reagan, Spencer Scharff, Donald Shooter,
Eric Spencer, Robyn Stallworth-Pouquette, Alexis Tameron,
Victor Vasquez, and Dr. Muer Yang. The parties each raised
admissibility objections to certain of these deposition
designations. The Court addresses these objections, along
with other outstanding evidentiary matters, in a separate
order.
III.
OVERVIEW OF CHALLENGED ELECTIONS PRACTICES
A.
H.B. 2023
Voting
in Arizona involves a flexible mixture of early in-person
voting, early voting by mail, and traditional, in-person
voting at polling places on Election Day. Arizona voters do
not need an excuse to vote early and Arizona permits early
voting both in person and by mail during the 27 days before
an election. A.R.S. § 16-541. For those voters who
prefer to vote early and in-person, all Arizona counties
operate at least one in-person early voting location. Some of
these locations are open on Saturdays. (Doc. 361 ¶ 59.)
Arizona
has allowed early voting by mail for over 25 years, and it
has since become the most popular method of voting,
accounting for approximately 80 percent of all ballots cast
in the 2016 election. In 2007, Arizona implemented permanent
no-excuse early voting by mail, known as the Permanent Early
Voter List (“PEVL”). Arizonans now may vote early
by mail either by requesting an early ballot on an
election-by-election basis, or by joining the PEVL, in which
case they will be sent an early ballot as a matter of course
no later than the first day of the 27-day early voting
period. A.R.S. §§ 16-542, -544. In 2002, Arizona
also became the first state to make available an online voter
registration option, allowing voters to register online
through Arizona's Motor Vehicle Division
(“MVD”) website, www.servicearizona.com. When
registering online through the MVD, voters can enroll in the
PEVL by clicking a box. (Doc. 361 ¶ 56.)
To be
counted, an early ballot must be received by the county
recorder by 7:00 p.m. on Election Day. A.R.S. §
16-548(A). Early ballots contain instructions that inform
voters of the 7:00 p.m. deadline. Voters may return their
early ballots by mail postage-free, but they must mail them
early enough to ensure that they are received by this
deadline. Additionally, some Arizona counties provide special
drop boxes for early ballots, and voters in all counties may
return their early ballots in person at any polling place,
vote center, or authorized election official's office
without waiting in line. (Doc. 361 ¶¶ 57, 61.)
Since
1997, it has been the law in Arizona that “[o]nly the
elector may be in possession of that elector's unvoted
early ballot.” A.R.S. § 16-542(D). In 2016,
Arizona amended A.R.S. § 16-1005 by enacting H.B. 2023,
which limits who may collect a voter's voted or unvoted
early ballot:
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). Voters therefore may entrust a
caregiver, family member, household member, mail carrier, or
elections official to return their early ballots, but may not
entrust other, unauthorized third parties to do so.
B.
Rejection of OOP Ballots
Since
at least 1970, Arizona has required voters who choose to vote
in person on Election Day to cast their ballots in their
assigned precinct and has enforced this system by counting
only those ballots cast in the correct precinct. (Doc. 361
¶ 46.) Because elections involve many different
overlapping jurisdictions, the precinct-based system ensures
that each voter receives a ballot reflecting only the races
for which that person is entitled to vote. (Ex. 95 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. §§ 16-122, -135, -584.
After Election Day, county elections officials review all
provisional ballots. If a voter's address is determined
to be within the precinct, the provisional ballot is counted.
Arizona does not count any portion of a provisional ballot
cast outside of a voter's correct precinct. A majority of
states do not count OOP ballots, putting Arizona well within
the mainstream on this issue.[5] Indeed, at no point has the DOJ
objected to this practice, and Plaintiffs object to it for
the first time in this case.
In
2011, Arizona amended its elections code to allow counties to
choose whether to conduct elections under the traditional
precinct model or to use a “vote center” system.
2011 Ariz. Legis. Serv. Ch. 331 (H.B. 2303) (April 29, 2011)
(amending A.R.S. § 16-411). Unlike the precinct-based
system, the vote center model requires each vote center to be
equipped to print a specific ballot, depending on each
voter's particular district, that includes all races for
which that voter is eligible to vote. 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). Graham,
Greenlee, Cochise, Navajo, Yavapai, and Yuma counties have
adopted the vote center model. These counties are mostly
rural and sparsely populated. Precinct-based voting
requirements, such as Arizona's policy to not count OOP
ballots, have no impact on voters in these counties. By
comparison, the most populous counties in Arizona, such as
Maricopa, Pima, and Pinal, currently adhere to the
traditional precinct-based model.
IV.
PRELIMINARY ISSUES
A.
Standing
Article
III of the United States Constitution limits federal courts
to resolving “Cases” and “Controversies,
” one element of which is standing. To have standing to
litigate in federal court, 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).
Plaintiffs
have organizational standing to challenge the election
regulations at issue. Ballot collection was a GOTV strategy
used primarily by the Democratic Party to increase electoral
participation by otherwise low-efficacy voters. (Tr. 416-26,
632-33, 659, 902, 930; Healy Dep. 28:15-29:13.) H.B.
2023's limitations will require Democratic organizations,
such as the ADP, to retool their GOTV strategies and divert
more resources to ensure that low-efficacy voters are
returning their early mail ballots. Additionally, credible
expert testimony shows that minority voters, who tend to vote
disproportionately for Democratic candidates, vote OOP at
higher rates than non-minority voters. Thus, Arizona's
policy to not count OOP ballots places a greater imperative
on organizations like the ADP to educate their voters. These
are sufficiently concrete and particularized injuries that
are fairly traceable to the challenged provisions. 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 Wis. Inst., Inc. v.
Nichol, 186 F.Supp.3d 958, 967 (W.D. Wis. 2016) (finding
expenditure of resources for educating voters about how to
comply with new state voter registration requirements
sufficient to establish standing).
Plaintiffs
also have associational standing to challenge these
provisions on behalf of their members.
[A]n association has standing to bring suit on behalf of its
members when: (a) its members would otherwise have standing
to sue in their own right; (b) the interests it seeks to
protect are germane to the organization's purpose; and
(c) neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.
Hunt v. Wash. State Apple Adver. Comm'n, 432
U.S. 333, 343 (1977). A number of self-identified Democratic
voters testified either that they have used ballot collection
services in the past, or that they have voted OOP. The voting
rights of such individuals are germane to Plaintiffs'
goal of electing Democratic candidates to local, state, and
federal offices. Further, neither the claims asserted nor the
relief requested requires individual members to participate
in this lawsuit.
Finally,
Plaintiffs' asserted injuries can be redressed by a
favorable decision of this Court. “[W]hen a plaintiff
challenges the constitutionality of a rule of law, it is the
state official designated to enforce that rule who is the
proper defendant[.]” Am. Civil Liberties Union v.
The Fla. Bar, 999 F.2d 1486, 1490 (11th Cir. 1993).
Here, county officials are responsible for counting ballots
and verifying proper voter registration, see A.R.S.
§§ 16-621(A), -584(E), but Secretary Reagan and
Attorney General Brnovich also play a role in determining how
OOP ballots are counted. Arizona law requires Secretary
Reagan, after consulting with county officials, to
“prescribe rules to achieve and maintain the maximum
degree of correctness, impartiality, uniformity and
efficiency on the procedures for early voting and voting, and
of producing, distributing, collecting, counting, tabulating
and storing ballots.” A.R.S. § 16-452(A). These
rules are prescribed in the Election Procedures Manual and
have the force of law. A.R.S. § 16-452(B)-(C).
“Any person who does not abide by the Secretary of
State's rules is subject to criminal penalties, ”
Ariz. Libertarian Party, Inc. v. Bayless, 351 F.3d
1277, 1280 (9th Cir. 2003) (citing A.R.S. § 16-452(C)),
and Attorney General Brnovich is authorized to prosecute such
violations, A.R.S. § 16-1021. Although county officials
are responsible for physically counting ballots, they are not
empowered to count or reject ballots at their discretion.
Rather, “[a]ll proceedings at the counting center shall
be under the direction of the board of supervisors or other
officer in charge of elections and shall be conducted in
accordance with the approved instructions and procedures
manual[.]” A.R.S. § 16-621(A).
Though
the Court cannot require Secretary Reagan and Attorney
General Brnovich to physically count OOP ballots for races
for which the voter was otherwise eligible to cast a vote, it
can require them to prescribe such a procedure in the
Election Procedures Manual, which county election officials
then would be bound by law to follow. Further, Attorney
General Brnovich can ensure compliance with such a directive
because he is authorized to prosecute county officials who
violate it.
Likewise,
Attorney General Brnovich is empowered to enforce state
election laws like H.B. 2023. He is not the only official
with such authority; Attorney General Brnovich is authorized
to enforce Arizona's election laws “[i]n any
election for state office, members of the legislature,
justices of the supreme court, judges of the court of appeals
or statewide initiative or referendum, ” but in
elections for “county, city or town office, community
college district governing board, judge or a county, city, or
town initiative or referendum, ” that authority resides
with “the appropriate county, city or town
attorney[.]” A.R.S. § 16-1021. But most elections
will include statewide races and therefore Attorney General
Brnovich likely will share enforcement authority in most
circumstances. Moreover, although Attorney General Brnovich
might lack authority to direct the enforcement activities of
county and municipal prosecutors, there is no reason to
believe that these local law enforcement officials will
attempt to enforce H.B. 2023 should the Court declare it
unconstitutional or unlawful under the VRA.
Lastly,
although there is no evidence that Secretary Reagan or other
state or local elections officials play a direct role in the
enforcement of H.B. 2023, Secretary Reagan has some indirect
involvement in the law's implementation by virtue of her
responsibility for drafting the Election Procedures Manual.
If the Court were to enjoin H.B. 2023's implementation
and enforcement, the Election Procedures Manual would need to
reflect as much.
B.
Effect of Preliminary Appellate Proceedings
On
September 23, 2016, the Court denied Plaintiffs' motion
to preliminarily enjoin enforcement of H.B. 2023. (Doc. 204.)
On October 4, 2016, the Court also denied Plaintiffs'
motion to preliminary enjoin enforcement of H.B. 2023 pending
Plaintiffs' appeal of the Court's September 23 order.
(Doc. 213.) Plaintiffs thereafter moved the Ninth Circuit
Court of Appeals for an injunction pending appeal, which was
denied by a three-judge motions panel. Later, on October 28,
2016, a divided three-judge merits panel affirmed the
Court's order denying Plaintiffs' preliminary
injunction motion. Chief Judge Thomas dissented.
On
November 2, 2016, a majority the Ninth Circuit's
non-recused active judges voted to rehear the case en banc.
Two days later, a majority of the en banc panel voted to
preliminarily enjoin enforcement of H.B. 2023 pending the
panel's rehearing, essentially for the reasons provided
in Chief Judge Thomas' dissent.[6] This preliminary injunction
was short-lived, however, as the United States Supreme Court
stayed the order on November 5, 2016, pending the Ninth
Circuit's final disposition of the appeal.
In
light of this history, the parties disagree over the effect
that Chief Judge Thomas' dissent should have on the
Court's post-trial analysis. As explained during the
final pretrial conference, although the Court has considered
Chief Judge Thomas' dissent, the Court is not bound by
its factual analysis. To date, all appellate proceedings have
occurred at the preliminary injunction stage on a less
developed factual record. Findings and conclusions rendered
at the preliminary injunction stage are just
that-preliminary. They do not necessarily preclude the Court
from making different findings or conclusions after thorough
factual development and a full trial on the merits.
Accordingly, although the Court is mindful of Chief Judge
Thomas' critiques and their preliminary adoption by a
majority of the en banc panel, the Court is not bound to make
identical findings and conclusions as those made at a
preliminary phase of the litigation.
And
with that, the Court proceeds to the merits.
V.
FIRST AND FOURTEENTH AMENDMENTS[7]
“[T]he
Constitution of the United States protects the right of all
qualified citizens to vote, in state as well as in federal
elections.” Reynolds v. Sims, 377 U.S. 533,
554 (1964). Relatedly, the First and Fourteenth Amendments
protect the right of the people to associate for political
purposes. Tashjian v. Republican Party of Conn., 479
U.S. 208, 214 (1986). “It does not follow, however,
that the right to vote in any manner and the right to
associate for political purposes . . . are absolute.”
Burdick v. Takushi, 504 U.S. 428, 433 (1992).
Rather, the Constitution empowers states to regulate the
“Times, Places and Manner of holding Elections for
Senators and Representatives, ” U.S. Const. art. I,
§ 4, cl. 1, and states retain “control over the
election process for state offices, ”
Tashjian, 479 U.S. at 217. “Common sense, as
well as constitutional law, compels the conclusion that
government must play an active role in structuring
elections.” Burdick, 504 U.S. at 433.
“[A]s a practical matter, there must be a substantial
regulation of elections if they are to be fair and honest and
if some sort of order, rather than chaos, is to accompany the
democratic processes.” Storer v. Brown, 415
U.S. 724, 730 (1974).
Like an
individual's voting and associational rights, however, a
state's power to regulate elections is not absolute; it
is “subject to the limitation that [it] may not be
exercised in a way that violates other . . . provisions of
the Constitution.” Williams v. Rhodes, 393
U.S. 23, 29 (1968); see Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 451 (2008). But because
all election regulations “invariably impose some burden
upon individual voters, ” Burdick, 504 U.S. at
433, “not every voting regulation is subject to strict
scrutiny, ” Pub. Integrity Alliance, Inc. v. City
of Tucson, 836 F.3d 1019, 1024 (9th Cir. 2016).
Instead, . . . a more flexible standard applies. A court
considering a challenge to a state election law must weigh
“the character and magnitude of the asserted injury to
the rights protected by the First and Fourteenth Amendments
that the plaintiff seeks to vindicate” against
“the precise interests put forward by the State as
justifications for the burden imposed by its rule, ”
taking into consideration “the extent to which those
interests make it necessary to burden the plaintiff's
rights.”
Burdick, 504 U.S. at 434 (quoting Anderson v.
Celebrezze, 460 U.S. 780, 789 (1983)). This framework
commonly is referred to as the Anderson/Burdick
test, after the two Supreme Court decisions from which it
derives.
Under
this framework, the degree to which the Court scrutinizes
“the propriety of a state election law depends upon the
extent to which a challenged regulation burdens First and
Fourteenth Amendment rights.” Id. A law that
imposes severe burdens is subject to strict scrutiny, meaning
it must be narrowly tailored to serve a compelling state
interest. Id. “Regulations imposing . . .
[l]esser burdens, however, trigger less exacting review, and
a State's ‘important regulatory interests' will
usually be enough to justify ‘reasonable,
nondiscriminatory restrictions.'” Timmons v.
Twin Cities Area New Party, 520 U.S. 351, 358 (1997)
(quoting Burdick, 504 U.S. at 434); see also
Pub. Integrity Alliance, 836 F.3d at 1024
(“Applying these precepts, ‘[w]e have repeatedly
upheld as ‘not severe' restrictions that are
generally applicable, evenhanded, politically neutral, and
protect the reliability and integrity of the election
process.'” (quoting Dudum v. Arntz, 640
F.3d 1098, 1106 (9th Cir. 2011)). Additionally, when applying
Anderson/Burdick, the Court considers the
state's election regime as a whole, including aspects
that mitigate the hardships that might be imposed by the
challenged provisions. See Ohio Democratic Party v.
Husted, 834 F.3d 620, 627 (6th Cir. 2016); see also
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 199
(2008) (considering mitigating aspects of Indiana's
election laws).
A.
Application to H.B. 2023
1.
Burden on Voting Rights
At
most, H.B. 2023 minimally burdens Arizona voters as a whole.
In fact, the vast majority of Arizona voters are unaffected
by the law. Although voting by early mail ballot has steadily
increased in Arizona, in any given election there remains a
subset of voters who choose to vote in person, either early
at a designated early voting site or on Election Day.
In-person voters are not impacted by limitations on who may
collect early mail ballots. For example, 2, 323, 579
registered voters cast ballots during the 2012 general
election. (Ex. 543 at 2.) Of these, 1, 542, 855 submitted
early mail ballots, over 99 percent of which were counted.
(Ex. 95 at 17.) Thus, roughly a third of all Arizonans voted
in person during the 2012 general election. Similarly,
approximately 80 percent of ...