David Isabel v. Michele Reagan ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ISABEL, individually and on No. 19-17397
behalf of all others similarly situated,
Plaintiff-Appellant, D.C. No.
2:18-cv-03217-
v. DWL
MICHELE REAGAN, in her individual
capacity; COUNTY OF MARICOPA; OPINION
ADRIAN FONTES, in his official
capacity as Maricopa County
Recorder,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Dominic Lanza, District Judge, Presiding
Argued and Submitted November 20, 2020
Phoenix, Arizona
Filed February 11, 2021
Before: Jay S. Bybee, Mary H. Murguia, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Murguia
2 ISABEL V. REAGAN
SUMMARY *
Civil Rights
The panel affirmed the district court’s dismissal, for
failure to state a claim, of an action brought by an Arizona
voter seeking to remedy Appellees’ failure to count his vote
in the 2016 November General Election.
Arizona law in effect in 2016 set the voter registration
deadline for the 2016 November General Election on
Monday, October 10, 2016. But because Monday, October
10, 2016 was also Columbus Day, a state and federal
holiday, certain methods of voter registration were not
available on that day. Plaintiff, along with roughly 2,000
others, registered to vote on Tuesday, October 11, 2016. His
cast ballot, however, was not counted because officials in the
Maricopa County Recorder’s Office determined that
plaintiff was not an eligible voter due to his failure to register
by the October 10, 2016 deadline, as set forth in Ariz. Rev.
Stat. § 16-120.
The panel held that based on the specific facts of this
case, the Arizona statute in effect at the time, and the plain
language of the National Voter Registration Act (“NVRA”),
plaintiff failed to timely register to vote and was therefore
not eligible to vote in the 2016 November General Election.
This conclusion alone precluded both plaintiff’s claim under
Article I, Section 2 of the Constitution, which secures the
right to vote for qualified voters, and his claim under Section
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ISABEL V. REAGAN 3
8 of the NVRA, which ensures voter eligibility for persons
who timely register. Accordingly, the panel declined to
address whether plaintiff adequately alleged a deprivation of
his right to vote that warranted money damages or whether
violations of the NVRA could be remedied under § 1983.
The panel noted that this rigid result was not likely to reoccur
under Ariz. Rev. Stat. § 16-120, as amended in 2017, which
directly addressed the circumstances presented in this case.
COUNSEL
Spencer G. Scharff (argued), Scharff PLLC, Phoenix,
Arizona; Nathan Fidel, Miller Pitt Feldman & McAnally
P.C., Phoenix, Arizona; Scott Caplan, Law Office of Scott
Caplan P.C., Long Island City, New York; for Plaintiff-
Appellant.
Timothy A. La Sota (argued), Law Office of Timothy A. La
Sota PLC, Phoenix, Arizona, for Defendant-Appellee
Michele Reagan.
Joseph J. Branco (argued), Joseph La Rue, and Talia Offord,
Deputy County Attorneys; Allister Adel, County Attorney;
Civil Services Division, County Attorney’s Office, Phoenix,
Arizona, for Defendants-Appellees County of Maricopa and
Adrian Fontes.
4 ISABEL V. REAGAN
OPINION
MURGUIA, Circuit Judge:
This case turns on whether Arizona residents who
registered to vote on October 11, 2016, registered to vote in
time to be eligible to vote in the 2016 November General
Election (“2016 November Election”). Arizona law in effect
in 2016 1 set the voter registration deadline for the 2016
November Election on Monday, October 10, 2016. But
because Monday, October 10, 2016 was also Columbus Day,
a state and federal holiday, certain methods of voter
registration were not available on that day. Appellant David
Isabel, along with roughly 2,000 others, registered to vote on
Tuesday, October 11, 2016. Isabel now appeals the district
court’s dismissal of his lawsuit brought to remedy
Appellees’ failure to count Isabel’s and the other October 11
registrants’ votes.
We must determine (1) whether Isabel was eligible to
vote in the 2016 November Election under Arizona law, and
if so, whether he sufficiently alleged a deprivation of his
right to vote that warrants monetary damages; and
(2) whether the Arizona voter registration deadline violated
1
In 2017, shortly after the 2016 November Election, the Arizona
Legislature amended Ariz. Rev. Stat. § 16-120—the Arizona statute
setting the voter registration deadline—to provide that when the voter
registration deadline falls on a Saturday, Sunday, or other legal holiday,
voter registrations received on the next business day immediately
following the Saturday, Sunday, or other legal holiday are deemed timely
for purposes of voting in the upcoming election. Ariz. Rev. Stat. § 16-
120(B) (2017). This amendment directly addresses the circumstances
presented in this case, where the voter registration deadline fell on a legal
holiday and an Arizona resident registered on the following business day.
Therefore, this opinion addresses only Arizona law as it was in effect in
2016, before the 2017 amendment.
ISABEL V. REAGAN 5
the National Voter Registration Act (“NVRA”), and if so,
whether that violation can be remedied under 42 U.S.C.
§ 1983. We hold that, under Arizona law in effect in 2016,
an Arizona resident who registered to vote on October 11,
2016 did not register in time to be eligible to vote in the 2016
November Election. We also hold that the October 10, 2016
voter registration deadline did not violate the NVRA.
Because we conclude that the answer to these threshold
questions is no, we need not reach the remaining two
questions regarding the enforceability of the NVRA under
§ 1983 and the factual predicate necessary to state a
cognizable money damages claim for deprivation of an
individual’s right to vote.
I. Factual and Procedural Background
To vote in the 2016 November Election, Arizona law in
effect at the time required that qualified residents’ voter
registration forms “be received by the county recorder . . .
prior to midnight of the twenty-ninth day” before the
upcoming election, which was set for November 8, 2016.
Ariz. Rev. Stat. § 16-120 (2016). 2 The twenty-ninth day
before the 2016 November Election was Monday, October
10, 2016, which also happened to be Columbus Day, a state
and federal holiday. See Ariz. Rev. Stat. § 1-301(A);
5 U.S.C. § 6103(a).
2
In 2016, Arizona law provided: “No elector shall vote in an
election called pursuant to the laws of this state unless the elector has
been registered to vote as a resident within the boundaries or the
proposed boundaries of the election district for which the election is
being conducted and the registration has been received by the county
recorder or his designee pursuant to § 16-134 prior to midnight of the
twenty-ninth day preceding the date of the election.” Ariz. Rev. Stat.
§ 16-120 (2016).
6 ISABEL V. REAGAN
Arizona residents may generally register to vote in-
person at county recorder offices, Ariz. Rev. Stat. § 16-134;
in-person through designated public assistance agencies,
Ariz. Rev. Stat. §§ 16-134(A), 16-140; in-person at a Motor
Vehicle Division (“MVD”) office, Ariz. Rev. Stat. § 16-112;
by mail, § 16-134(C); or online through the Service Arizona
website, www.servicearizona.com, Ariz. Rev. Stat. § 16-
112. However, because of the weekend and the Columbus
Day holiday, post offices were closed on Sunday, October 9,
2016 and Monday, October 10, 2016. Likewise, Arizona
MVD offices were closed Saturday, October 8, 2016 through
Monday, October 10, 2016. Therefore, Arizona residents
were unable to register by mail or in person at an MVD
office on the October 10, 2016 voter registration deadline. 3
Isabel, a new resident to Arizona, registered to vote at an
MVD office on Tuesday, October 11, 2016. On Election
Day, Isabel went to his assigned polling location to cast his
ballot. Isabel was instructed to fill out a provisional ballot
because his name was not on the list of eligible voters. Isabel
complied and deposited a provisional ballot as instructed.
Arizona law requires each county recorder to verify all
provisional ballots; Isabel’s ballot was verified but it was not
counted because officials in the Maricopa County
3
We take judicial notice that in Arizona Democratic Party v.
Reagan—a case heavily relied on by Isabel that addresses the same
October 10, 2016 voter registration deadline—the district court
explained that while post offices and Arizona MVD offices were closed
on October 10, 2016, fourteen out of fifteen county recorder offices and
the Secretary of State’s office were open and received in-person voter
registration applications on October 10, 2016. No. CV-16-03618-PHX-
SPL, 2016 WL 6523427, at *3 (D. Ariz. Nov. 3, 2016). The district
court’s order also states that voter registration applications were also
received online on October 10, 2016 via the Service Arizona website,
www.servicearizona.com. Id.ISABEL V. REAGAN 7
Recorder’s Office determined that Isabel was not an eligible
voter due to his failure to register by the October 10, 2016
deadline. The 2016 November Election results were
certified on December 5, 2016.
On October 9, 2018, some time after Isabel learned that
his provisional ballot had not been counted, Isabel filed a
class action complaint against (1) former Secretary of State
Michele Reagan (the “Secretary”), in her individual
capacity; (2) the Maricopa County Recorder, Adrian Fontes,
in his official capacity; (3) and Maricopa County
(collectively, “Appellees”). Isabel asserted a violation of the
NVRA and sought monetary relief pursuant to § 1983.
Specifically, Isabel alleged that Section 8 of the NVRA
requires that each state ensure an eligible applicant is
registered to vote in an election if “the valid voter
registration form of the applicant” is: (1) “submitted to the
appropriate State motor vehicle authority;”
(2) “postmarked;” (3) “accepted at the voter registration
agency;” or (4) otherwise “received by the appropriate State
election official . . . not later than the lesser of 30 days, or
the period provided by State law, before the date of the
election.” 4 Isabel further alleged that because two of the
4
In pertinent part, Section 8 of the NVRA provides:
(a) In general: In the administration of voter
registration for elections for Federal office, each State
shall¨
(1) ensure that any eligible applicant is registered
to vote in an election–
(A) in the case of registration with a motor
vehicle application under section 20504 of
this title, if the valid voter registration form
8 ISABEL V. REAGAN
NVRA-mandated voter registration methods—the post
office and state motor vehicle division offices—were closed
on Monday, October 10, 2016 and the preceding weekend
days, Arizona residents who chose to register by one of these
methods were required to register to vote more than thirty
days before the election, which Isabel claims violates
Section 8 of the NVRA. In response to the Secretary’s
motion to dismiss for failure to state a claim, the district
court, without addressing whether Isabel had alleged a
of the applicant is submitted to the
appropriate State motor vehicle authority not
later than the lesser of 30 days, or the period
provided by State law, before the date of the
election;
(B) in the case of registration by mail under
section 20505 of this title, if the valid voter
registration form of the applicant is
postmarked not later than the lesser of 30
days, or the period provided by State law,
before the date of the election;
(C) in the case of registration at a voter
registration agency, if the valid voter
registration form of the applicant is accepted
at the voter registration agency not later than
the lesser of 30 days, or the period provided
by State law, before the date of the election;
and
(D) in any other case, if the valid voter
registration form of the applicant is received
by the appropriate State election official not
later than the lesser of 30 days, or the period
provided by State law, before the date of the
election.
52 U.S.C. § 20507(a).
ISABEL V. REAGAN 9
violation of the NVRA, concluded that Isabel’s NVRA-
based claim failed as a matter of law because a plaintiff
wishing to assert an NVRA claim must sue directly under
the NVRA, not § 1983. Isabel was granted leave to file a
First Amended Complaint (“FAC”).
Isabel’s FAC reasserted his claim under the NVRA, but
also added, among other things, a claim alleging a violation
of Isabel’s fundamental right to vote, again seeking
monetary relief under § 1983. Isabel asserted that Article I,
Section 2 of the United States Constitution secures the right
of qualified voters within a state to cast their ballots and have
them counted in Congressional elections. Isabel further
alleged that he, and all otherwise eligible voters 5 who
registered on October 11, were qualified within the state of
Arizona to cast their ballots for the 2016 November Election
and therefore Appellees’ failure to count their votes violated
their right secured by Article I, Section 2. Following a
second motion to dismiss for failure to state a claim, the
district court dismissed Isabel’s right to vote claim. The
district court concluded that even assuming Isabel timely
registered to vote and was a qualified Arizona voter, he
failed to show that the facts alleged gave rise to a money-
damages claim against Appellees under § 1983. The district
court dismissed Isabel’s FAC without leave to amend. 6
5
To be eligible to vote in Arizona, one must meet certain
requirements in addition to timely voter registration. See Ariz. Rev. Stat.
§ 16-101 (requiring, among other things, that residents be “a citizen of
the United States” and “eighteen years of age or more” to qualify to
register to vote). Whether Isabel satisfied the qualifications set forth in
Ariz. Rev. Stat. § 16-101 is not in dispute here.
6
Although the district court’s order dismissing the FAC does not
expressly incorporate its prior analysis dismissing Isabel’s NVRA-based
10 ISABEL V. REAGAN
The district court’s dismissal of Isabel’s NVRA and
constitutional right to vote claims are the subjects of this
appeal. 7 We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm, albeit on different grounds. See Atel Fin.
Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003)
(per curiam) (“We may affirm a district court’s judgment on
any ground supported by the record, whether or not the
decision of the district court relied on the same grounds or
reasoning we adopt.”). We conclude that, under Arizona law
in effect in 2016, Isabel did not register in time to be eligible
to vote in the 2016 November Election, and that the NVRA
does not compel a different conclusion. By Isabel’s own
admission, his timely registration is a threshold question to
both claims at issue. Because Isabel cannot meet this
threshold requirement, we hold that his claims were properly
dismissed and decline to reach the grounds relied on by the
district court.
claim, as asserted in his original complaint, incorporation can be inferred
by the district court’s notation that the “FAC does not contain any new
factual allegations and does not assert any alternative theories
concerning Count I of the original complaint (the NVRA-based § 1983
claim).” In any event, an appeal from a final judgment, as is the case
here, encompasses “all earlier non-final orders and all rulings which
produced the judgment.” Munoz v. Small Bus. Admin., 644 F.2d 1361,
1364 (9th Cir. 1981); Sackett v. Beaman, 399 F.2d 884, 889 n.6 (9th Cir.
1968).
7
Isabel’s FAC also asserted a claim under the Help America Vote
Act (“HAVA”), but Isabel waived any arguments that his HAVA claim
was improperly dismissed by failing to address the claim in his opening
brief except in a footnote. See City of Emeryville v. Robinson, 621 F.3d
1251, 1262 n.10 (9th Cir. 2010) (concluding that appellant waived claim
“[b]y failing to address the issue in its opening brief except in a
footnote”).
ISABEL V. REAGAN 11
II. Standard of Review
We review the district court’s dismissal for failure to
state a claim upon which relief can be granted de novo. See
Puri v. Khalsa, 844 F.3d 1152, 1157 (9th Cir. 2017). We
accept as true all well-pled allegations of material fact and
construe them in the light most favorable to Isabel. See id.However, we need not accept as true legal conclusions
couched as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
III. Discussion
First, we must determine whether Isabel registered to
vote in time to be eligible to vote in the 2016 November
Election. And whether Isabel timely registered to vote
hinges on the interpretation of state and federal law—
specifically, Ariz. Rev. Stat. § 16-120 and 52 U.S.C.
§ 20507 (the NVRA). Isabel argues that he has sufficiently
alleged that he timely registered to vote under the applicable
state and federal statutes because he claims that he submitted
the appropriate registration form on October 11, 2016—the
twenty-eighth day before the election, which is the day after
the deadline set in Ariz. Rev. Stat. § 16-120 and incorporated
in the NVRA. As support for this position, Isabel points to
another provision of Arizona law, Ariz. Rev. Stat. § 1-303,
which he claims provides that any voter registration
application filed on October 11, 2016 is deemed to have been
filed on October 10, 2016 in light of the Columbus Day
holiday. He further asserts that even if the applicable
Arizona law is not interpreted as he claims, the NVRA’s text,
which supersedes Arizona law, plainly precludes any state
from setting its 2016 November Election voter registration
deadline before October 11, 2016. In Isabel’s view, the
NVRA requires states to ensure eligible voters can register
to vote by each of the NVRA-mandated registration methods
12 ISABEL V. REAGAN
up to the thirtieth day before the election (or a date closer to
the election if provided by state law), and a deadline that
effectively requires any voter registration application to be
received earlier than thirty days before the election violates
the NVRA. Isabel contends that because two of the NVRA-
mandated methods of registration—the post office and state
MVD offices—were closed on the October 10, 2016
deadline (the twenty-ninth day before the election) and on
Sunday, October 9, 2016 (the thirtieth day before the
election), and the MVD offices were also closed on
Saturday, October 8, 2016 (the thirty-first day before the
election), the October 10, 2016 deadline, in effect, required
persons who chose to register by mail or in person at the
MVD to register on a date earlier than thirty days before the
election. To avoid this “effective deadline” and comply with
the NVRA, Isabel contends that the first available day for
election officials to require that a voter registration
application be postmarked or submitted in person at an MVD
office was Tuesday, October 11, 2016.
Because the governing deadline under the NVRA is “the
lesser of 30 days, or the period provided by State law, before
the date of the election,” Arizona’s voter registration
deadline of the twenty-ninth day before the election is the
operative deadline as it is fewer than thirty days before the
election. In other words, if Isabel timely registered under
Arizona law as he contends, he timely registered under the
NVRA. As a result, we address Isabel’s arguments with
respect to Arizona law first.
A The 2016 State of Arizona Voter Registration
Deadline
In 2016, Arizona law required prospective voters to
register to vote “prior to midnight of the twenty-ninth day
preceding the date of the election,” Ariz. Rev. Stat. § 16-120,
ISABEL V. REAGAN 13
and the twenty-ninth day preceding the 2016 November
Election was October 10, 2016—Columbus Day. The
question here is whether Arizona law provides that
registration applications submitted on October 11, 2016, the
day following a holiday, are timely.
Ariz. Rev. Stat. § 1-303 provides that when a deadline to
perform an action—in this case registering to vote—falls on
a holiday, the action “may be performed on the next ensuing
business day with effect as though performed on the
appointed day.” 8 Isabel therefore contends that under Ariz.
Rev. Stat. § 1-303, his October 11 registration was timely.
The Arizona Supreme Court, however, has foreclosed Ariz.
Rev. Stat. § 1-303’s application to circumstances such as
those presented here. See Bd. of Supervisors of Maricopa
Cnty. v. Superior Ct., Maricopa Cnty., 446 P.2d 231 (Ariz.
1968).
In Board of Supervisors, the Arizona Supreme Court
interpreted a statute requiring official absentee ballots to be
delivered to the county recorders “not less than thirty days
prior to a primary election.” Id. at 233 (quoting Ariz. Rev.
Stat. § 16-1104(B) (1968)). 9 In the relevant year, the
deadline of thirty days preceding the primary election fell on
8
Section 1-303 provides: “When anything of a secular nature, other
than a work of necessity or charity, is provided or agreed to be done upon
a day named or within a time named, and the day or the last day thereof
falls on a holiday, it may be performed on the next ensuing business day
with effect as though performed on the appointed day.” Ariz. Rev. Stat.
§ 1-303.
9
Ariz. Rev. Stat. § 16-1104(B) (1968) provides that, “[t]he officer
charged by law with the duty of preparing ballots at the election shall
prepare the official absent or disabled voter’s ballot, and deliver a
sufficient number to the recorder not less than thirty days prior a primary
election and not less than thirty days prior to a general election.”
14 ISABEL V. REAGAN
a Sunday. Id. Because the county recorder offices were
closed on Sundays, petitioners sought to extend the deadline
to the following Monday pursuant to Ariz. Rev. Stat. § 1-
303. Id. The Arizona Supreme Court declined to extend the
deadline as requested and reasoned that “if we allow an
additional day to deliver the ballots because the last day falls
upon a Sunday, the delivery will no longer be ‘thirty days
prior’” to the election. Id.The Arizona Supreme Court explained that Ariz. Rev.
Stat. § 1-303, by its own terms, applies only to statutes that
set deadlines “upon a day named or within a time named.”
Id. (quoting Ariz. Rev. Stat. § 1-303). Therefore, Ariz. Rev.
Stat. § 1-303 applies only when an act is required to be done
“upon a day named” like January 1, see Kammert Bros.
Enters. v. Tanque Verde Plaza Co., 420 P.2d 592, 605 (Ariz.
1966) (applying Ariz. Rev. Stat. § 1-303 to determine the
first day of “default” when performance was required by
“January 1” or the “first of the year”), vacated on other
grounds, 428 P.2d 678 (1967), or “within a time named” like
“within one hundred eighty days after the cause of action
accrues” or “within ten calendar days after the refusal,” see
Ekweani v. Maricopa Cnty. Sheriff’s Office, No. CV-08-
1551-PHX-FJM, 2009 WL 976520, at *3 (D. Ariz. Apr. 9,
2009) (applying Ariz. Rev. Stat. § 1-303 to a notice of claims
statute, Ariz. Rev. Stat. § 12-821.01(A), that required a
prospective plaintiff to file a notice of claim “within 180
days of the accrual of the cause of action”); Fisher v. City of
Apache Junction, 28 P.3d 946, 947 (Ariz. Ct. App. 2001)
(applying Ariz. Rev. Stat. § 1-303 to a statute setting the
deadline to apply for a writ of mandamus “within ten
calendar days” after the Secretary of State refused to accept
a petition for initiative or referendum). Ariz. Rev. Stat. § 1-
303, however, does not apply to deadlines that require
something be done in a minimum time prior to some event,
ISABEL V. REAGAN 15
such as “thirty days prior to a primary election.” Bd. of
Supervisors, 466 P.2d at 233. Arizona courts strictly
construe these types of deadlines. Id. (“We believe this
statute [“dealing with elections” and using “the words ‘not
less than thirty days prior’”] is to be strictly construed.”); see
also Fisher, 28 P.3d at 947 (applying Board of Supervisors
and distinguishing statutory deadlines that count backwards,
like the one addressed in Board of Supervisors which
required something be done prior to some event, from those
that count forwards, i.e., “[w]ithin ten calendar days after” a
certain event) (emphasis added).
Just as the statute addressed in Board of Supervisors, the
Arizona statute governing voter registration in 2016 set a
deadline that required registration be completed in a
minimum time prior to the date of the 2016 November
Election—it did not provide a day named or a time in which
an act is required to be done. See Bd. of Supervisors,
446 P.2d at 233; Fisher, 28 P.3d at 947. Therefore, the
deadline set in Ariz. Rev. Stat. § 16-120 is not the type of
deadline generally subject to Ariz. Rev. Stat. § 1-303. 10
Moreover, as articulated in Board of Supervisors, if the voter
registration deadline were extended to Tuesday, October 11,
2016, the registration application would no longer be
received “prior to midnight of the twenty-ninth day
preceding the date of the election,” as required by the version
of Ariz. Rev. Stat. § 16-120 in effect in 2016. Therefore, the
2016 Arizona voter registration deadline is the type of
deadline the Arizona Supreme Court “believe[s] . . . is to be
10
Of course, the Arizona Legislature remained free to add a specific
deadline-shifting provision in Ariz. Rev. Stat. § 16-120, which it did
through statutory revisions in 2017.
16 ISABEL V. REAGAN
strictly construed”. 11 Bd. of Supervisors, 446 P.2d at 233.
Accordingly, Isabel’s claim fails.
Isabel’s only authority to the contrary is Arizona
Democratic Party v. Reagan, No. CV-16-03618, 2016 WL
6523427 (D. Ariz. Nov. 3, 2016) (hereinafter “ADP”). The
district court in ADP rejected Board of Supervisors as
controlling precedent because it found Arizona’s statutory
scheme, including Ariz. Rev. Stat. § 16-120, sufficiently
clear and unambiguous that the court “need not employ other
methods of statutory construction.” Id. at *15. The district
court in ADP, however, declined to “determine whether the
[Arizona Secretary of State] was required to extend the
[October 10 deadline] here pursuant to § 1-303.” Id. at *16.
But when this Court is tasked with interpreting state law, we
must predict how the state’s supreme court would resolve the
issue. See Dimidowich v. Bell & Howell, 803 F.2d 1473,
1482 (9th Cir. 1986) (“This court will follow a state supreme
court’s interpretation of its own statute in the absence of
extraordinary circumstances . . . . Where the state’s highest
court has not decided an issue, the task of the federal courts
is to predict how the state high court would resolve it.”)
(citations omitted).
Board of Supervisors is the controlling Arizona
precedent here. There are no extraordinary circumstances
present that warrant our deviation from the Arizona Supreme
Court’s interpretation of its own state law, Ariz. Rev. Stat.
§ 1-303, and the deadline set in the 2016 version of Ariz.
11
Isabel cites to a 1958 Attorney General Opinion applying Ariz.
Rev. Stat. § 1-303 to extend the registration deadline for a primary
election when it fell on July 4th. However, to the extent this source was
persuasive, it is superseded by the Arizona Supreme Court’s 1968
opinion in Board of Supervisors, 446 P.2d at 233.
ISABEL V. REAGAN 17
Rev. Stat. § 16-120 is nearly indistinguishable from the
statutory deadline addressed in Board of Supervisors.
Moreover, the plain language of the statute, before the 2017
amendment, requires registration forms be received no later
than the twenty-ninth day before the election. 12 See Zamora
v. Reinstein, 915 P.2d 1227, 1230 (Ariz. 1996) (explaining
that a statute’s language is the best indication of the
Legislature’s intent and where “the language is plain and
unambiguous, courts generally must follow the text as
written”) (internal quotation and citation omitted). We
therefore decline to adopt the reasoning set forth in ADP.
Therefore, under applicable Arizona law, voters who
registered on October 11, 2016 did not register in time to be
eligible to vote in the 2016 November Election. We note,
however, that this result is not likely to reoccur in light of
the Arizona Legislature’s 2017 amendment to Ariz. Rev.
Stat. § 16-120. In its 2017 regular session, the Arizona
Legislature amended Ariz. Rev. Stat. § 16-120 to provide
that:
If the twenty-ninth day preceding the date of
the election falls on a Saturday, Sunday or
other legal holiday, voter registrations that
are received on the next business day
immediately following the Saturday, Sunday
or other legal holiday are deemed to have
12
Isabel alleges in the FAC that in 2012, “the 29th day before the
general election was October 8, 2012, and, because that day was
Columbus Day, the voter registration deadline in Arizona was October
9, 2012.” However, we must review the law in front of us, and the
Secretary of State’s prior actions, without more, do not require us to
deviate from the plain language of the statute. Isabel does not provide
any authority to the contrary.
18 ISABEL V. REAGAN
been timely received for purposes of voting
in that election.
Ariz. Rev. Stat. § 16-120(B) (2017). Because the Arizona
Legislature addressed the confusion posed by the
intersection of voter registration deadlines and holidays, our
application of Arizona law in this opinion is limited to
interpreting Ariz. Rev. Stat. § 16-120 as it was in effect in
2016.
B. NVRA
Federal law does not compel a different result. The
NVRA, in pertinent part, provides that “each State shall . . .
ensure that any eligible applicant is registered to vote in an
election” if a valid voter registration form:
(A) in the case of registration with a motor
vehicle application, is submitted to the
appropriate State motor vehicle authority,
(B) in the case of registration by mail, is
postmarked,
(C) in the case of registration at a voter
registration agency, is accepted at the
voter registration agency, or
(D) in any other case, is received by the
appropriate State election official,
“not later than the lesser of 30 days, or the period provided
by State law, before the date of the election.” 52 U.S.C.
§ 20507(a). Because Arizona’s registration deadline—the
twenty-ninth day before the election—is less than thirty days
before the election, it is the applicable registration deadline
ISABEL V. REAGAN 19
under the NVRA. Therefore, the unambiguous terms of the
NVRA required Arizona to ensure that a qualified voter who
submitted their registration application twenty-nine days
before the 2016 November Election be registered to vote in
that election. Id.; Ariz. Rev. Stat. § 16-120. Isabel,
however, registered to vote on the twenty-eighth day before
the election. Because Isabel did not submit his registration
application at least twenty-nine days before the election as
required by Arizona law at the time, the Secretary argues that
Isabel’s claim “falls out of the plain language of the NVRA.”
We agree. See, e.g., Hardt v. Reliance Standard Life Ins.
Co., 560 U.S. 242, 251 (2010) (“We must enforce plain and
unambiguous statutory language according to its terms.”).
Again, Isabel’s only authority to the contrary is the
district court’s determination in ADP that the October 10,
2016 deadline violated the NVRA because “in effect, [due
to the holiday and weekend closures], the deadline to register
by postmarked mail was Saturday, October 8, 2016—
31 days before the election” and “[t]he deadline to register
in-person at the MVD was Friday, October 7, 2016—32 days
before the election,” thereby failing to “ensure that any
applicant who registered to vote ‘not later’ than [29] days
before November 8, 2016 was eligible to vote in the [2016
November Election].” ADP, 2016 WL 6523427, at *13.
Had Isabel attempted to register on or before October 10,
2016 this rationale may have more appeal. But those are not
the facts before us. The district court’s reasoning in ADP
necessarily assumes that if the applicable deadline falls on a
weekend or holiday, the NVRA imposes an affirmative duty
on states to ensure that persons who register to vote later
than the deadline are registered to vote in the upcoming
election. This assumption, however, is inconsistent with the
express terms of the statute—ensuring registration for those
who register not later than the applicable deadline.
20 ISABEL V. REAGAN
52 U.S.C. § 20507(a). Neither Isabel nor the district court in
ADP provide a basis for this contradictory interpretation.
Without more, we decline to construe the terms of the statute
beyond their ordinary meaning. See Williams v. Taylor,
529 U.S. 420, 431 (2000) (“We give the words of a statue
their ordinary, contemporary, common meaning, absent an
indication Congress intended them to bear some different
import.”) (internal quotation marks and citation omitted).
Similarly, Isabel’s assertion that the NVRA requires
states to ensure eligible voters can register by each of the
NVRA-mandated registration methods up to the thirtieth day
before the election may impute more meaning to the NVRA
than its plain language allows. The text of the NVRA
requires states to ensure eligible voters who timely submit a
voter registration application by one of the enumerated
methods are registered to vote. It does not, however,
expressly direct states to further ensure that each of the
enumerated methods are available on the thirtieth day before
the election, even if that day falls on a non-business day.
In sum, we conclude Isabel’s untimely registration
precludes his ability to adequately allege that Appellees
violated the NVRA by failing to ensure he was registered to
vote in the 2016 November Election.
IV. Conclusion
Based on the specific facts of this case, the Arizona
statute in effect at the time, and the plain language of the
NVRA, Isabel failed to timely register to vote and was
therefore not eligible to vote in the 2016 November Election.
This conclusion alone precludes both Isabel’s claim under
Article I, Section 2 of the Constitution, which secures the
right to vote for qualified voters, and his claim under Section
8 of the NVRA, which ensures voter eligibility for persons
ISABEL V. REAGAN 21
who timely register. Accordingly, we decline to address
whether Isabel adequately alleged a deprivation of his right
to vote that warrants money damages or whether violations
of the NVRA can be remedied under § 1983, and we affirm
the district court’s dismissal of Isabel’s claims.
Notably, this rigid result is not likely to reoccur under
Ariz. Rev. Stat. § 16-120, as amended.
AFFIRMED