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Knox v. Brnovich

United States District Court, D. Arizona

August 24, 2018

Rivko Knox, Plaintiff,
v.
Mark Brnovich, Defendant.

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DENYING INJUNCTIVE RELIEF

          DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE

         Plaintiff Rivko Knox challenges the constitutionality of Arizona Revised Statute (“A.R.S.”) § 16-1005(H), as amended in 2016 by Arizona House Bill 2023 (hereinafter referred to as “H.B. 2023”), pursuant to 42 U.S.C. § 1983.[1] Knox contends that H.B. 2023-which makes it a felony for anyone other than the voter to possess that voter's early ballot, unless the possessor falls within a statutorily enumerated exception-is preempted by federal laws regulating the carriage and delivery of mail, violates the First Amendment to the United States Constitution, and is unconstitutionally vague. She seeks an order enjoining Defendant Arizona Attorney General Mark Brnovich from implementing or enforcing H.B. 2023.

         Knox initiated this action on July 3, 2018, concurrently filing a complaint and a motion for a preliminary injunction. (Docs. 1-2.) In her preliminary injunction motion, Knox requested both expedited relief and consolidation of the preliminary injunction hearing with the trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). After conferencing with the parties telephonically on July 11, 2018, the Court granted Knox's request to expedite and consolidate the preliminary injunction hearing with the trial on the merits because this case presents pure questions of law and no factual disputes. In lieu of standard case management procedures, the Court set a briefing and hearing schedule on Knox's preliminary injunction motion, which functionally became an opening trial brief. (Doc. 10.)

         On August 10, 2018, the Court conducted a consolidated preliminary injunction hearing and bench trial (hereinafter “consolidated hearing”). (Doc. 22.) Having considered the parties' briefs and presentations during the consolidated hearing, and for the following reasons, the Court finds in favor of Brnovich and against Knox on all claims.[2]

         I. Background

         In addition to traditional, in-person voting on Election Day, Arizona permits no-excuse early voting, both in-person and via mail, during the 27 days before an election. A.R.S. § 16-541. “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.” Democratic Nat'l Comm. v. Reagan, __ F.Supp.3d __, 2018 WL 2191664, at *7 (D. Ariz. May 10, 2018) (citing A.R.S. §§ 16-542, -544) (hereinafter “DNC”). To be counted, however, 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.” DNC, 2018 WL 2191664, at *7.

         Knox is a Democratic Precinct Committeeperson (“PC”) and a member of the League of Women Voters of Arizona (“LWVAZ”). (Doc. 1 ¶ 17.) A substantial part of Knox's community involvement is door-to-door canvassing. (¶ 18.) When Knox canvasses, she often encourages voters to complete and mail their early ballots. (¶ 20.) Before the 2016 election cycle, Knox collected and delivered ballots on behalf of voters she met while canvassing and who requested such service. (¶¶ 21-22.)

         In 2016, however, Arizona enacted H.B. 2023, which limits who may collect a voter's voted or unvoted early ballot as follows:

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.” DNC, 2018 WL 2191664, at *8. Knox actively opposed H.B. 2023, testifying against the measure on behalf of LWVAZ. (Doc. 26 at 71.)

         Since H.B. 2023's enactment, Knox has not offered to collect or deliver another person's early ballot, even if someone asks her for such assistance, because she understands that she now is “prohibited from collecting and delivering another person's early ballot.” (Doc. 1 ¶ 24; Doc. 1-1 ¶ 10.) Knox plans to canvass during the 2018 election cycle, but in the absence of a court order enjoining enforcement of H.B. 2023, she will not offer or engage in ballot collection services. (Doc. 1 ¶¶ 32, 57.)

         II. Legal Standard

         Although Knox's motion seeks a preliminary injunction, the standards governing the issuance of a permanent injunction now govern because the Court granted Knox's request to consolidate the preliminary injunction hearing with the trial on the merits. Before the Court may grant a permanent injunction, Knox must succeed on the merits of at least one of her claims and also prove:

(1) that [she] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that ...

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