United States District Court, D. Arizona
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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