Gonzalez v. Yes on Prop 200 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA M. GONZALEZ; BERNIE 
ABEYTIA; ARIZONA HISPANIC
COMMUNITY FORUM; CHICANOS POR
LA CAUSA; FRIENDLY HOUSE; JESUS
GONZALEZ; DEBBIE LOPEZ;
SOUTHWEST VOTER REGISTRATION
EDUCATION PROJECT; LUCIANO
VALENCIA; VALLE DEL SOL; THE
INTER TRIBAL COUNCIL OF ARIZONA,
INC.; ARIZONA ADVOCACY
NETWORK; STEVE M. GALLARDO;
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS ARIZONA; LEAGUE OF
WOMEN VOTERS OF ARIZONA; No. 06-16521
PEOPLE FOR THE AMERICAN WAY  D.C. No.
FOUNDATION; HOPI TRIBE, CV-06-01268-ROS
Plaintiffs-Appellees,
v.
STATE OF ARIZONA; JAN BREWER, in
her official capacity as Secretary
of State of Arizona; SHELLY
BAKER, La Paz County Recorder;
BERTA MANUZ, Greenlee County
Recorder; LYNN CONSTABLE,
Yavapai County Election Director;
KELLY DASTRUP, Navajo County
Election Director; LAURA DEAN-
LYTLE, Pinal County Recorder;

4433
4434 GONZALEZ v. YES ON PROPOSITION 200
JUDY DICKERSON, Graham County 
Election Director; DONNA HALE,
La Paz County Election Director;
SUSAN HIGHTOWER MARLAR, Yuma
County Recorder; GILBERTO
HOYOS, Pinal County Election
Director; LAURETTE JUSTMAN,
Navajo County Recorder; LENORA
JOHNSON, Apache County
Recorder; PATTI MADRILL, Yuma
County Election Director; JOAN
MCCALL, Mohave County
Recorder; MELINDA MEEK, Santa
Cruz County Election Director;
SUZIE SAINZ, Santa Cruz County
Recorder; THOMAS SCHELLING,
Cochise County Election Director; 
ALLEN TEMPERT, Mohave County
Election Director; ANN WAYMAN-
TRUJILLO, Yavapai County
Recorder; WENDY JOHN, Graham
County Recorder; CANDACE
OWENS, Coconino County
Recorder; PATTY HANSEN,
Coconino County Election
Director; CHRISTINE RHODES,
Cochise County Recorder; LINDA
HAUGHT ORTEGA, Gila County
Recorder; DIXIE MUNDY, Gila
County Election Director; BRAD
NELSON, Pima County Election
Director; KAREN OSBORNE,

GONZALEZ v. YES ON PROPOSITION 200 4435
Maricopa County Election 
Director; YVONNE PEARSON,
Greenlee County Election
Director; PENNY PEW, Apache
County Election Director; HELEN
PURCELL; F. ANN RODRIGUEZ, Pima
County Recorder, 
Defendants,
and
YES ON PROPOSITION 200,
Defendant-Intervenor-
Appellant.

MARIA M. GONZALEZ; BERNIE 
ABEYTIA; ARIZONA HISPANIC
COMMUNITY FORUM; CHICANOS POR
LA CAUSA; FRIENDLY HOUSE; JESUS
GONZALEZ; DEBBIE LOPEZ;
SOUTHWEST VOTER REGISTRATION
EDUCATION PROJECT; LUCIANO
VALENCIA; VALLE DEL SOL, No. 06-16702
Plaintiffs-Appellants,  D.C. No.
and CV-06-01268-ROS
THE INTER TRIBAL COUNCIL OF
ARIZONA, INC.; ARIZONA ADVOCACY
NETWORK; STEVE M. GALLARDO;
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS ARIZONA; LEAGUE OF
WOMEN VOTERS OF ARIZONA;

4436 GONZALEZ v. YES ON PROPOSITION 200
PEOPLE FOR THE AMERICAN WAY 
FOUNDATION; HOPI TRIBE,
Plaintiffs,
v.
STATE OF ARIZONA; JAN BREWER, in
her official capacity as Secretary
of State of Arizona; SHELLY
BAKER, La Paz County Recorder;
BERTA MANUZ, Greenlee County
Recorder; LYNN CONSTABLE,
Yavapai County Election Director;
KELLY DASTRUP, Navajo County
Election Director; LAURA DEAN-
LYTLE, Pinal County Recorder;
JUDY DICKERSON, Graham County
Election Director; DONNA HALE, 
La Paz County Election Director;
SUSAN HIGHTOWER MARLAR, Yuma
County Recorder; GILBERTO
HOYOS, Pinal County Election
Director; LAURETTE JUSTMAN,
Navajo County Recorder; LENORA
JOHNSON, Apache County
Recorder; PATTI MADRILL, Yuma
County Election Director; JOAN
MCCALL, Mohave County
Recorder; MELINDA MEEK, Santa
Cruz County Election Director;
SUZIE SAINZ, Santa Cruz County
Recorder; THOMAS SCHELLING,
Cochise County Election Director;

GONZALEZ v. YES ON PROPOSITION 200 4437
ALLEN TEMPERT, Mohave County 
Election Director; ANN WAYMAN-
TRUJILLO, Yavapai County
Recorder; WENDY JOHN, Graham
County Recorder; CANDACE
OWENS, Coconino County
Recorder; PATTY HANSEN,
Coconino County Election
Director; CHRISTINE RHODES,
Cochise County Recorder; LINDA
HAUGHT ORTEGA, Gila County
Recorder; DIXIE MUNDY, Gila
County Election Director; BRAD
NELSON, Pima County Election
Director; KAREN OSBORNE,

Maricopa County Election
Director; YVONNE PEARSON,
Greenlee County Election
Director; PENNY PEW, Apache
County Election Director; HELEN
PURCELL, Maricopa County
Recorder; F. ANN RODRIGUEZ, Pima
County Recorder,
Defendants-Appellees,
and
YES ON PROPOSITION 200,
Defendant-Intervenor.

4438 GONZALEZ v. YES ON PROPOSITION 200
MARIA M. GONZALEZ; BERNIE 
ABEYTIA; ARIZONA HISPANIC
COMMUNITY FORUM; CHICANOS
POR LA CAUSA; FRIENDLY HOUSE;
JESUS GONZALEZ; DEBBIE LOPEZ;
SOUTHWEST VOTER REGISTRATION
EDUCATION PROJECT; LUCIANO
VALENCIA; VALLE DEL SOL,
Plaintiffs,
and
THE INTER TRIBAL COUNCIL OF
ARIZONA, INC.; ARIZONA ADVOCACY
NETWORK; STEVE M. GALLARDO;
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS ARIZONA; LEAGUE OF No. 06-16706
WOMEN VOTERS OF ARIZONA;
PEOPLE FOR THE AMERICAN WAY  D.C. No.
CV-06-01268-ROS
FOUNDATION; HOPI TRIBE,
Plaintiffs-Appellants, OPINION
v.
STATE OF ARIZONA; JAN BREWER, in
her official capacity as Secretary
of State of Arizona; SHELLY
BAKER, La Paz County Recorder;
BERTA MANUZ, Greenlee County
Recorder; LYNN CONSTABLE,
Yavapai County Election Director;
KELLY DASTRUP, Navajo County
Election Director; LAURA DEAN-
LYTLE, Pinal County Recorder;
JUDY DICKERSON, Graham County
Election Director; DONNA HALE,
La Paz County Election Director;

GONZALEZ v. YES ON PROPOSITION 200 4439
SUSAN HIGHTOWER MARLAR, Yuma 
County Recorder; GILBERTO
HOYOS, Pinal County Election
Director; LAURETTE JUSTMAN,
Navajo County Recorder; LENORA
JOHNSON, Apache County
Recorder; PATTI MADRILL, Yuma
County Election Director; JOAN
MCCALL, Mohave County
Recorder; MELINDA MEEK, Santa
Cruz County Election Director;
SUZIE SAINZ, Santa Cruz County
Recorder; THOMAS SCHELLING,
Cochise County Election Director;
ALLEN TEMPERT, Mohave County
Election Director; ANN WAYMAN- 
TRUJILLO, Yavapai County
Recorder; WENDY JOHN, Graham
County Recorder; CANDACE
OWENS, Coconino County
Recorder; PATTY HANSEN,
Coconino County Election
Director; CHRISTINE RHODES,
Cochise County Recorder; LINDA
HAUGHT ORTEGA, Gila County
Recorder; DIXIE MUNDY, Gila
County Election Director; BRAD
NELSON, Pima County Election
Director; KAREN OSBORNE,
Maricopa County Election

4440 GONZALEZ v. YES ON PROPOSITION 200
Director; YVONNE PEARSON, 
Greenlee County Election
Director; PENNY PEW, Apache
County Election Director; HELEN
PURCELL, Maricopa County
Recorder; F. ANN RODRIGUEZ, Pima
County Recorder,

Defendants-Appellees,
and
YES ON PROPOSITION 200,
Defendant-Intervenor.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
January 8, 2007—San Francisco, California
Filed April 20, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
John T. Noonan, Circuit Judge, and George P. Schiavelli,*
District Judge.
Opinion by Chief Judge Schroeder
*The Honorable George P. Schiavelli, United States District Judge for
the Central District of California, sitting by designation.
GONZALEZ v. YES ON PROPOSITION 200 4443
COUNSEL
Joel M. Spector, Lakewood, Colorado, for defendant-
intervener/appellant Yes on Proposition 200.
Nina Perales, San Antonio, Texas, for plaintiffs-appellees/
appellants Gonzalez, et al.
4444 GONZALEZ v. YES ON PROPOSITION 200
Thomas L. Hudson, Phoenix, Arizona, for ITCA plaintiffs.
Mary O’Grady, Assistant Attorney General, Phoenix, Ari-
zona, for defendants/appellees, State of Arizona, et al.
OPINION
SCHROEDER, Chief Judge:
This litigation involves Proposition 200, enacted pursuant
to Arizona voter initiative in 2004. The Proposition amended
Arizona law to require persons wishing to register to vote for
the first time in Arizona to present proof of citizenship, and
to require all Arizona voters to present identification when
they vote in person at the polls.
Plaintiffs are Arizona residents, Indian tribes and various
community organizations. They filed this action in district
court, challenging the validity of the Proposition on six
asserted grounds: (1) that it is an unconstitutional poll tax, in
violation of the Twenty-fourth Amendment to the United
States Constitution; (2) that it violates the Equal Protection
Clause of the Fourteenth Amendment because it imposes a
disproportionate burden on naturalized citizens; (3) that it
impedes the Fourteenth Amendment’s guarantee of the funda-
mental right to vote; (4) that it violates Section 2 of the Vot-
ing Rights Act, 42 U.S.C. § 1973(a); (5) that it violates the
Civil Rights Act, 42 U.S.C. §§ 1971(a)(2)(A) and (B); and (6)
that it violates the National Voter Registration Act, 42 U.S.C.
§ 1973gg et seq. (“NVRA”).
Plaintiffs filed their complaint in May 2006, seeking an
injunction, pending trial, against the operation of both the reg-
istration and the voting provisions of the Proposition. On Sep-
tember 11, 2006, the district court denied a preliminary
injunction. Shortly before the November 2006 general elec-
GONZALEZ v. YES ON PROPOSITION 200 4445
tion, plaintiffs filed their notice of appeal and also sought,
from a motions panel of this Court, an emergency interlocu-
tory injunction. Time was of the essence to plaintiffs because
the 2006 general election was imminent. A regular two-judge
motions panel of this court granted the requested relief and,
in a brief order, enjoined enforcement of the Proposition’s
provisions.
On the application of the State and four counties, the
Supreme Court vacated the emergency injunction because the
motions panel gave no reasons for its action. See Purcell v.
Gonzalez, 127 S. Ct. 5, 549 U.S. — (2006). The Supreme
Court explained that, because the motions panel had not pro-
vided any reasoning, it could not determine whether the panel
had given appropriate deference to the district court’s denial
of the requested relief. Id. at 5. In a separate opinion, Justice
Stevens stressed that the case would benefit from the develop-
ment of a full record regarding both the scope of voter disen-
franchisement resulting from enforcement of the Proposition
and the “prevalence and character” of the ostensible voter
fraud that the Proposition was intended to counter. Id. at 5-6
(opinion of Stevens, J., concurring).
In the wake of the Supreme Court’s opinion, plaintiffs
chose not to continue to seek injunctive relief with respect to
the in-person voting identification requirement. Before us
now, on the same underlying record that was before the
motions panel, is plaintiffs’ appeal of the district court’s
denial of preliminary injunctive relief with respect only to the
voter registration requirement. We conclude that the district
court did not abuse its discretion in denying injunctive relief
with respect to this requirement, because the limited record
before us does not establish that the balance of hardships and
likelihood of success on the merits of plaintiffs’ claims justify
an injunction at this stage of the proceedings. The litigation
remains pending in the district court. There, final resolution
of the scope of any appropriate permanent relief can be deter-
4446 GONZALEZ v. YES ON PROPOSITION 200
mined on the basis of a fully developed record, and well
before the next general election in 2008.
BACKGROUND
Voters approved Proposition 200 in the 2004 general elec-
tion, and it was enacted on December 8, 2004. See A.R.S.
§ 16-166. In relevant part, Proposition 200 amended Arizona
law to direct registering voters to “submit evidence of United
States citizenship with the application and the registrar [to]
reject the application if no evidence of citizenship is
attached.” A.R.S. § 16-152(A)(23). “Satisfactory evidence of
citizenship” may be shown by including, with the voter regis-
tration form, any of the following: the number of an Arizona
driver’s license or non-operating identification license issued
after October 1, 1996 (the date Arizona began requiring proof
of lawful presence in the United States to obtain a license); a
legible copy of a birth certificate; a legible copy of a United
States passport; United States naturalization documents or the
number of the certificate of naturalization; “other documents
or methods of proof that [may be] established pursuant to”
federal immigration law. A.R.S. § 16-166(F). The law applies
to voters registered in Arizona before its effective date only
if they seek to change registration from one county to another.
A.R.S. § 16-166(G).
The 2006 election was the first general election to which
Proposition 200 applied. Plaintiffs filed their challenges to it
on May 9, 2006 and immediately moved for a preliminary
injunction against both the proof of citizenship requirement
and the in-person voter identification requirement. On Sep-
tember 11, 2006, the district court denied plaintiffs’ motion
but did not issue Findings of Fact and Conclusions of Law at
that time.
Plaintiffs appealed the denial to this Court and the Clerk set
a briefing schedule that concluded on November 21, 2006—
two weeks after the 2006 general election. Plaintiffs therefore
GONZALEZ v. YES ON PROPOSITION 200 4447
requested an injunction pending appeal that, pursuant to this
Court’s rules then in effect, was heard by a two-judge motions
panel. See 9th Cir. R. 3-3 (2006). On October 5, 2006, the
motions panel issued an order granting plaintiffs’ emergency
request for an injunction pending appeal, retaining the brief-
ing schedule, and stating: “The court enjoins implementation
of Proposition 200’s voting identification requirement in con-
nection with Arizona’s November 7, 2006 general election;
and enjoins Proposition 200’s registration proof of citizenship
requirements so that voters can register before the October 9,
2006 registration deadline. This injunction shall remain in
effect pending disposition of the merits of these appeals.”
Order in Nos. 06-16702, 06-16706 (filed Oct. 5, 2006), at 1-
2.
Four days later, the motions panel denied defendants’
request for reconsideration. The district court had not yet
entered Findings of Fact and Conclusions of Law. The State
and four counties then sought relief from the injunction in the
United States Supreme Court. On October 12, 2006, while
review by the Supreme Court was still pending, the district
court issued the Findings of Fact and Conclusions of Law
explaining its denial of the preliminary injunction. The Find-
ings stated that, although plaintiffs had shown some likeli-
hood of success on the merits of some of their claims, the
court could not conclude “at this stage [that] they have shown
a strong likelihood of success” on any of the claims. It further
concluded that the balance of hardships tipped sharply in
favor of defendants, the state and counties that were all fully
prepared to enforce the Proposition’s provisions.
On October 20, 2006, the Supreme Court issued its opinion
in which it construed the State’s filing as a petition for certio-
rari, granted the petition, and vacated the motions panel’s
injunction. See Purcell, 127 S. Ct. at 1. The opinion did not
affect plaintiffs’ underlying appeal of the district court’s
denial of preliminary injunctive relief, which remained pend-
ing in this Court. Following the Supreme Court’s order vacat-
4448 GONZALEZ v. YES ON PROPOSITION 200
ing the emergency injunction pending appeal, the parties
proceeded to brief the merits of the appeal. Plaintiffs-
appellants at that point elected to limit their appeal to the reg-
istration identification requirement. The voter identification
requirement therefore is not before us.
Because appellants moved for a preliminary injunction
before any evidentiary proceedings could occur, the informa-
tion in the record regarding Proposition 200’s effect on voter
registration is not extensive. It contains affidavits from four
individuals who claim the new law burdens their right to vote.
All four lack a driver’s license, a birth certificate or any other
document sufficient to register to vote. It also indicates that,
between 1996 and the present, as many as 232 non-citizens
tried to register to vote and that the State prosecuted ten of
those 232 alleged non-citizens. The record is silent, however,
as to how many non-citizens illegally registered to vote with-
out detection, and also as to how many Arizona citizens lack
all of the documents for registration the State will accept.
According to data extrapolated from population estimates and
voter registration rolls, voter registration in Arizona appears
to have declined since January 2005, but this data provides no
enlightenment as to the extent or cause of the registration
decline.
In its Findings of Fact and Conclusions of Law, the district
court found that, while plaintiffs had shown “a possibility of
success” on the merits of some of their claims, they had not
shown a strong likelihood of success on any of them. Indeed,
the district court expressed its “reservations regarding the reli-
ability” of some of the record evidence and noted that it had
“no other reliable evidence” with which to compare it. Fur-
thermore, in concluding that the balance of the hardships
tipped sharply in favor of defendants, the district court found
that plaintiffs’ delay in filing their complaint undermined the
contention that immediate relief was necessary. It also empha-
sized that the State had invested significant time and effort in
GONZALEZ v. YES ON PROPOSITION 200 4449
preparing to enforce the new requirements and that an order
reinstituting the prior procedures likely would confuse voters.
ANALYSIS
Appellants here make four arguments to support a grant of
injunctive relief, all of which the district court rejected. We
deal with each in turn.
I. Poll Tax
Appellants contend that Proposition 200’s registration iden-
tification requirement amounts to an unconstitutional poll tax
in violation of the Twenty-fourth Amendment because some
Arizona citizens possess none of the documents sufficient for
successful registration. As a result, appellants say, these citi-
zens will be required to spend money to obtain documents
necessary to register to vote and, therefore, are being taxed to
vote.
[1] The Twenty-fourth Amendment proscribes any denial
or abridgement of the right to vote for “failure to pay any poll
tax or other tax.” U.S. Const. amend. XXIV. The Amendment
was passed in order to combat the “disenfranchisement of the
poor[,]” which was the intention of the early poll taxes. Har-
man v. Forssenius, 380 U.S. 528, 539 (1965). Appellants
assert that Proposition 200 effects exactly this result in Ari-
zona and thus is unconstitutional.
Arizona’s new law, however, is not like the system found
unconstitutional in Harman. That case examined a Virginia
provision that required voters to pay a poll tax, but allowed
those who were unwilling or unable to pay the tax to file a
certificate of residency. Id. at 530-31. The Supreme Court
struck down the Virginia system specifically because it was
premised on the requirement that some voters pay a poll tax.
Id. The Court emphasized that the issue was not whether Vir-
ginia could require all voters to file a certificate of residency
4450 GONZALEZ v. YES ON PROPOSITION 200
each year, but that voters were required to file such certificate
only if they refused to pay a poll tax. Id. at 542. Thus, their
right to vote was “abridged . . . by reason of failure to pay the
poll tax.” Id.
[2] Here, voters do not have to choose between paying a
poll tax and providing proof of citizenship when they register
to vote. They have only to provide the proof of citizenship.
Nor does Arizona’s new law “make[ ] the affluence of the
voter or payment of any fee an electoral standard.” Harper v.
Virginia State Bd. of Elections, 383 U.S. 663, 666 (1966)
(holding that a state may not condition voting in state elec-
tions on payment of a tax). Plaintiffs have demonstrated little
likelihood of success of proving that Arizona’s registration
identification requirement is a poll tax.
II. Severe Burden on the Fundamental Right to Vote
[3] Appellants argue that Proposition 200 imposes an undue
burden on the right to vote in Arizona and the State therefore
was required to demonstrate to the district court that the law
would survive strict scrutiny. See Burdick v. Takushi, 504
U.S. 428, 434 (1992). In Burdick, the Supreme Court deter-
mined that laws that burden the right to vote only incidentally
need not be strictly scrutinized. Id. at 433. Only “severe”
restrictions “must be narrowly drawn to advance a state inter-
est of compelling importance.” Id. at 434. State election laws
that impose “reasonable, nondiscriminatory restrictions . . .
[on] the rights of voters” need be supported only by “impor-
tant regulatory interest[s].” Id.
[4] Burdick upheld a Hawaii prohibition on write-in candi-
dates against a challenge that the ban severely burdened vot-
ers’ right to vote for the candidate of their choice. Appellants
have not demonstrated that Proposition 200’s identification
requirement imposes any more severe burden. In this Circuit,
courts “uphold as ‘not severe’ restrictions that are generally
applicable, even-handed, politically neutral, and which protect
GONZALEZ v. YES ON PROPOSITION 200 4451
the reliability and integrity of the election process.” Rubin v.
City of Santa Monica, 308 F.3d 1008, 1014 (9th Cir. 2002).
Proposition 200 applies to all Arizonans. At this stage of the
proceedings, appellants have not shown that it is anything
other than an even-handed and politically neutral law.
[5] The evidence that Arizona citizens may be burdened by
the new law consists of four declarations from individuals
who are not parties to the litigation. These declarants object
that obtaining the documentation sufficient to register would
be “a burden.” Because the vast majority of Arizona citizens
in all likelihood already possess at least one of the documents
sufficient for registration, whether the law severely burdens
anyone, as the district court observed, is an “intense[ly] fac-
tual inquiry[,]” requiring development of a full record. Gonza-
lez v. State of Arizona, Nos. CV-06-1268, -1362, -1575, slip
op. at 9 (Oct. 11, 2006). We therefore agree with the district
court that, at this stage in the proceedings, appellants have not
raised serious questions going to the merits of this argument.
III. Disproportionate Burden on Naturalized Citizens
Appellants argue that Proposition 200 imposes a dispropor-
tionate burden on naturalized citizens because it singles them
out for more onerous documentation rules. Unlike native-born
citizens, appellants contend, naturalized citizens who do not
have a driver’s or non-operating identification license, or a
passport, must present naturalization information to the
county recorder to register to vote. These citizens may not
submit photocopies of their naturalization certificates, as
native-born citizens may do with birth certificates, because
naturalization certificates may not be photocopied without
lawful authority. Compare A.R.S. § 16-166(F)(2) with A.R.S.
§ 16-166(F)(4). This limitation, appellants argue, amounts to
a disproportionate burden on naturalized citizens in violation
of the Equal Protection Clause.
[6] The record before us, however, contains no affidavits or
declarations from naturalized citizens. Therefore, we do not
4452 GONZALEZ v. YES ON PROPOSITION 200
know the extent to which this requirement may burden or
inconvenience any such citizen. Furthermore, the statute
appears to permit naturalized citizens to use the number of the
certificate of naturalization on their registration forms. A.R.S.
§16-166(F)(4). Appellants present statistics suggesting that
use of this number may result in the return of some registra-
tion forms for correction, which requires naturalized citizens
to submit registration forms twice. There is no evidence in the
record, however, to support this conclusion. Therefore, plain-
tiffs have not demonstrated a likelihood of success on this
point.
IV. Violation of the NVRA
[7] Appellants next claim that Proposition 200 is preempted
by the NVRA because, they say, the NVRA prohibits states
from requiring that registrants submit proof of citizenship
when registering to vote. The NVRA mandates that states
either “accept and use the mail voter registration form pre-
scribed by the Federal Election Commission[,]” 42 U.S.C.
§ 1973gg-4(a)(1), or, in the alternative, “develop and use
[their own] form,” as long as the latter conforms to the federal
guidelines. Id. at § 1973gg-7(b).
[8] The NVRA also prohibits states from requiring that the
form be notarized or otherwise formally authenticated. Id.
Appellants interpret this as a proscription against states
requiring documentary proof of citizenship. The language of
the statute does not prohibit documentation requirements.
Indeed, the statute permits states to “require [ ] such identify-
ing information . . . as is necessary to enable . . . election offi-
cial[s] to assess the eligibility of the applicant.” Id. at
§ 1973gg-7(b)(1). The NVRA clearly conditions eligibility to
vote on United States citizenship. See 42 U.S.C. §§ 1973gg,
1973gg-7(b)(2)(A). Read together, these two provisions
plainly allow states, at least to some extent, to require their
citizens to present evidence of citizenship when registering to
GONZALEZ v. YES ON PROPOSITION 200 4453
vote. Thus, again plaintiffs have not demonstrated a likeli-
hood of succeeding on the merits of this claim.
V. The Balance of Hardships
[9] Appellants finally urge that the district court erred in
finding that the balance of hardships tipped sharply in favor
of appellees. In cases impacting elections, if a plaintiff seek-
ing injunctive relief does not show a strong likelihood of suc-
cess on the merits, the court examines whether the plaintiff
will be irreparably harmed by denial of an injunction, whether
or not the balance of hardships favors the plaintiff, and
whether the public interest will be advanced by injunctive
relief. Southwest Voter Registration Educ. Project v. Shelley,
344 F.3d 914, 917 (9th Cir. 2003) (internal quotation marks
omitted). “[T]he less certain the district court is of the likeli-
hood of success on the merits” of the claims, the greater the
burden on the plaintiff to “convince [it] that the public interest
and the balance of hardships tips in [plaintiffs’] favor.” Id.
[10] The district court determined that the balance of hard-
ships tipped sharply in favor of defendants-appellees because
plaintiffs-appellants waited well over a year to file suit and
the State was irretrievably committed to enforcing the new
law. The district court said that by the time plaintiffs filed
suit, on May 9, 2006, the State had “invested enormous
resources in preparing to apply Proposition 200[,]” and reins-
tituting the prior procedures “would undoubtedly cause confu-
sion among election officials, boardworkers, and voters.”
Gonzalez v. State of Arizona, Nos. CV 06-1268, -1362, -1575,
slip op. at 16-17 (Oct. 12, 2006). In claiming that the balance
of hardships and the public interest favor injunctive relief,
appellants present the same evidence the district court found
insufficient to raise serious questions on the merits of their
claims. This evidence does not support the conclusion that the
balance of hardships favors appellants.
[11] Because the record before us shows neither that appel-
lants raise serious questions going to the merits of their argu-
4454 GONZALEZ v. YES ON PROPOSITION 200
ments nor that the balance of hardships tips in their favor, we
agree with the district court that injunctive relief at this stage
of the proceedings is not warranted.
VI. Intervention by “Yes on Proposition 200”
Under Federal Rule of Civil Procedure 24(a)(2), a party is
entitled to intervene where “(1) the intervention is timely; (2)
the applicant has a ‘significant protectable interest relating to
the property or transaction that is the subject of the action’;
(3) ‘the disposition of the action may, as a practical matter,
impair or impede the applicant’s ability to protect its interest’;
and (4) ‘the existing parties may not adequately represent the
applicant’s interest.’ ” Prete v. Bradbury, 438 F.3d 949, 954
(9th Cir. 2006) (quoting United States v. Alisal Water Corp.,
370 F.3d 915, 919 (9th Cir. 2004) (internal citations omit-
ted)).
Here, the citizen group that put forth significant effort to
ensure the passage of Proposition 200, Yes on Proposition
200 (“Intervenor”), is not a party to this action. It sought per-
mission from the district court to intervene pursuant to Rule
24(b), and also argued that it met the requirements for inter-
vention as of right under Rule 24(a)(2). The district court
ruled that Intervenor did not meet all of Rule 24(a)(2)’s
requirements and also refused to grant it permission to inter-
vene. Intervenor appeals only the district court’s ruling
regarding Rule 24(a)(2).
[12] In its denial, the district court found that Intervenor
satisfied the first three parts of the Rule 24(a)(2) test, but that
it had failed to show that “the existing parties may not ade-
quately represent the applicant’s interest.” Fed. R. Civ. P.
24(a)(2). Where “the government is acting on behalf of a con-
stituency it represents,” as it is here, this court assumes that
the government will adequately represent that constituency.
Prete, 438 F.3d at 956; see also Arakaki v. Cayetano, 324
F.3d 1078, 1086 (9th Cir. 2003). In order to overcome this
GONZALEZ v. YES ON PROPOSITION 200 4455
presumption, the would-be intervenor must make a “very
compelling showing” that the government will not adequately
represent its interest. Id. at 1086.
Intervenor contends that the district court relied on the
wrong precedent in requiring it to make a “very compelling
showing.” It urges that the court should have followed Sage-
brush Rebellion, Inc. v. Watt, 713 F.3d 525 (9th Cir. 1983),
rather than Prete. But Sagebrush Rebellion is not analogous
to this case.
[13] Sagebrush Rebellion turns on the lack of any real
adversarial relationship between the plaintiffs and the defen-
dants. That is not the situation here. Nothing in the record
before us suggests that defendants are unwilling or unable to
defend Proposition 200. Indeed, they have done so at every
level of the federal courts. The district court applied the cor-
rect precedent and did not err in denying Yes on Proposition
200’s motion to intervene as of right.
The order of the district court denying preliminary injunc-
tive relief and denying the motion to intervene is
AFFIRMED.