Arizona Democratic Party v. Katie Hobbs ( 2020 )

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIZONA DEMOCRATIC PARTY; No. 20-16759
DEMOCRATIC NATIONAL
COMMITTEE; DSCC, D.C. No. 2:20-cv-01143-DLR
District of Arizona,
Plaintiffs-Appellees, Phoenix
v. ORDER
KATIE HOBBS, in her official capacity as
Arizona Secretary of State,
Defendant-Appellee,
STATE OF ARIZONA,
Intervenor-Defendant-
Appellant,
and
EDISON WAUNEKA, in his official
capacity as Apache County Recorder;
DAVID STEVENS, in his official capacity
as Cochise County Recorder; PATTY
HANSEN, in her official capacity as
Coconino County Recorder; SADIE JO
BINGHAM, in her official capacity as Gila
County Recorder; WENDY JOHN, in her
official capacity as Graham County
Recorder; SHARIE MILHEIRO, in her
official capacity as Greenlee County
Recorder; RICHARD GARCIA, in his
official capacity as La Paz County Recorder;
ADRIAN FONTES, in his official capacity
as Maricopa County Recorder; KRISTI
BLAIR, in her official capacity as Mohave
County Recorder; MICHAEL SAMPLE, in
his official capacity as Navajo County
Recorder; F. ANN RODRIGUEZ, in her
official capacity as Pima County Recorder;
VIRGINIA ROSS, in her official capacity as
Pinal County Recorder; SUZANNE SAINZ,
in her official capacity as Santa Cruz County
Recorder; LESLIE HOFFMAN, in her
official capacity as Yavapai County
Recorder; ROBYN POUQUETTE, in her
official capacity as Yuma County Recorder,
Defendants,
REPUBLICAN NATIONAL
COMMITTEE; ARIZONA REPUBLICAN
PARTY; DONALD J. TRUMP FOR
PRESIDENT, INC.,
Intervenor-Defendants.
ARIZONA DEMOCRATIC PARTY; No. 20-16766
DEMOCRATIC NATIONAL
COMMITTEE; DSCC, D.C. No. 2:20-cv-01143-DLR
Plaintiffs-Appellees,
v.
KATIE HOBBS, in her official capacity as
Arizona Secretary of State,
Defendant-Appellee,
REPUBLICAN NATIONAL
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COMMITTEE; ARIZONA REPUBLICAN
PARTY; DONALD J. TRUMP FOR
PRESIDENT, INC.,
Intervenor-Defendants-
Appellants,
and
EDISON WAUNEKA, in his official
capacity as Apache County Recorder;
DAVID STEVENS, in his official capacity
as Cochise County Recorder; PATTY
HANSEN, in her official capacity as
Coconino County Recorder; SADIE JO
BINGHAM, in her official capacity as Gila
County Recorder; WENDY JOHN, in her
official capacity as Graham County
Recorder; SHARIE MILHEIRO, in her
official capacity as Greenlee County
Recorder; RICHARD GARCIA, in his
official capacity as La Paz County Recorder;
ADRIAN FONTES, in his official capacity
as Maricopa County Recorder; KRISTI
BLAIR, in her official capacity as Mohave
County Recorder; MICHAEL SAMPLE, in
his official capacity as Navajo County
Recorder; F. ANN RODRIGUEZ, in her
official capacity as Pima County Recorder;
VIRGINIA ROSS, in her official capacity as
Pinal County Recorder; SUZANNE SAINZ,
in her official capacity as Santa Cruz County
Recorder; LESLIE HOFFMAN, in her
official capacity as Yavapai County
Recorder; ROBYN POUQUETTE, in her
official capacity as Yuma County Recorder,
Defendants,
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STATE OF ARIZONA,
Intervenor-Defendant.
Before: O’SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges.
In this case, the Arizona Democratic Party and others have challenged
Arizona’s law requiring early voters to have signed their ballots by 7:00 PM on
Election Day in order to have their votes counted. See Ariz. Rev. Stat. §§ 16-
548(A), 16-552(B). On September 10, 2020, less than two months before the
upcoming presidential election, the district court enjoined the law and ordered
Arizona to create and to institute a new procedure that would grant voters who
failed to sign their ballots up to five days after voting has ended to correct the
error. The State of Arizona and others have appealed that decision to our court and
have sought, in the meantime, a stay of the district court’s injunction pending
adjudication of the appeal.
I
The Arizona law at issue is straightforward. First, Arizona requires early
voters to return their ballots along with a signed ballot affidavit in order to guard
against voter fraud—a requirement the plaintiffs do not challenge. Ariz. Rev. Stat.
§ 16-548(A). These early ballots must be received by polling officials by 7:00 PM
on Election Day so that they can be counted. Id. And, to enforce these
requirements, any ballot with an insufficient affidavit (including one that is
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missing a signature) will be disallowed by polling officials. Id. § 16-552(B). If an
early voter returns a ballot with an unsigned affidavit, Arizona has afforded him or
her an opportunity to cure the problem, but only until the general Election Day
deadline. See State of Arizona, Elections Procedures Manual 68–69 (Dec. 2019).
II
In evaluating a motion for a stay pending appeal, we consider whether the
applicant has made a strong showing of likelihood of success on the merits,
whether the applicant will be irreparably injured without a stay, whether a stay will
substantially injure the other parties, and where the public interest lies. Al Otro
Lado v. Wolf, 952 F.3d 999, 1006–07 (9th Cir. 2020) (citing Nken v. Holder, 556
U.S. 418, 434 (2009)).
Here, as explained below, the factors weigh in favor of a stay.
A
First, the State has shown that it is likely to succeed on the merits. As
observed by the district court, Arizona’s Election Day signature deadline imposes,
at most, a “minimal” burden on those who seek to exercise their right to vote.
Under the familiar “Anderson-Burdick” framework for evaluating ballot-access
laws, a nondiscriminatory, minimally burdensome voting requirement will be
upheld so long as it reasonably advances important regulatory interests. See
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); De La Fuente
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v. Padilla, 930 F.3d 1101, 1105 (9th Cir. 2019). The State has made a strong
showing that its ballot-signature deadline does so. All ballots must have some
deadline, and it is reasonable that Arizona has chosen to make that deadline
Election Day itself so as to promote its unquestioned interest in administering an
orderly election and to facilitate its already burdensome job of collecting,
verifying, and counting all of the votes in timely fashion. Indeed, though the
parties dispute the magnitude of the additional burden, there can be no doubt (and
the record contains evidence to show) that allowing a five-day grace period beyond
Election Day to supply missing signatures would indeed increase the
administrative burdens on the State to some extent.
The plaintiffs argue that the State’s interest is undermined by the fact that
Arizona recently enacted a narrow exception to the general Election Day deadline
for instances in which a polling official believes that the signature on a ballot
affidavit does not match the voter’s signature in the voter registration record. In
such a case, the voter will be notified and he or she may cure the problem within
five days after Election Day. See Ariz. Rev. Stat. § 16-550(A). But the State has
offered a reasonable explanation for why it has granted a limited opportunity to
correct such “mismatched” signatures but not to supply completely missing
signatures: whereas the failure to sign one’s ballot is entirely within the voter’s
control, voters are not readily able to protect themselves against the prospect that a
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polling official might subjectively find a ballot signature not to match a registration
signature. It is rational, then, that the State might voluntarily assume some
additional administrative costs to guard against the risk of losing such votes at
potentially no fault of the voters. But the State may still reasonably decline to
assume such burdens simply to give voters who completely failed to sign their
ballots additional time after Election Day to come back and fix the problem. See
also New Ga. Project v. Raffensperger, — F.3d —, 2020 WL 5877588, at *3 (11th
Cir. 2020) (concluding that Georgia’s Election-Day absentee ballot deadline is
“easily” justified by the State’s interests in “conducting an efficient election,
maintaining order, quickly certifying election results, and preventing voter
fraud”).1
B
The standard for granting a stay is a “sliding scale.” Al Otro Lado, 952 F.3d
at 1007. Under this approach, the elements of the test are “balanced, so that a
stronger showing of one element may offset a weaker showing of another.” Id.
(citing Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.
1
The State is also likely to succeed in showing that the district court “erred
in accepting the plaintiffs’ novel procedural due process argument,” because laws
that burden voting rights are to be evaluated under the Anderson/Burdick
framework instead. New Ga. Project, — F. 3d —, 2020 WL 5877588, at *3; see
also Dudum v. Arntz, 640 F.3d 1098, 1106 n.15 (9th Cir. 2011) (observing that “a
single analytic framework” applies in voting-rights cases, rather than “separate
analyses for . . . First Amendment, Due Process, or Equal Protection claims”).
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2011)). This consideration drives our decision here: even though the plaintiffs
contend that the changes to Arizona’s law will likely affect only a small number of
voters and create a relatively low administrative burden on the State, the State’s
probability of success on the merits is high. See also Abbott v. Perez, 138 S. Ct.
2305, 2324 & n.17 (2018) (recognizing irreparable harm to a State’s interests
where a court order “barr[ed] the State from conducting this year’s elections
pursuant to a [constitutionally permissible] statute enacted by the Legislature”).
And, as we rapidly approach the election, the public interest is well served by
preserving Arizona’s existing election laws, rather than by sending the State
scrambling to implement and to administer a new procedure for curing unsigned
ballots at the eleventh hour. Indeed, the Supreme Court “has repeatedly
emphasized that lower federal courts should ordinarily not alter the election rules
on the eve of an election.” Republican Nat’l Committee v. Democratic Nat’l
Committee, 140 S. Ct. 1205, 1207 (2020) (per curiam); see also, e.g., North
Carolina v. League of Women Voters of N.C., 574 U.S. 927 (2014) (mem.) (staying
a lower court order that changed election laws thirty-two days before the election);
Husted v. Ohio State Conference of NAACP, 573 U.S. 988 (2014) (mem.) (staying
a lower court order that changed election laws sixty-one days before the election);
Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam) (staying a lower court order
that changed election laws thirty-three days before the election). As discussed, the
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plaintiffs by contrast stand to face only the “minimal” burden of ensuring that
voters sign their ballot affidavits by 7:00 PM on Election Day if the law remains in
effect.
III
The appellants’ Emergency Motions for a Stay Pending Appeal (Docket
Entry No. 4 in 20-16759 and Docket Entry No. 2 in 20-16766) are GRANTED.2
2
We also GRANT the motions to file amicus briefs in support of the State of
Arizona’s emergency motion (Docket Entry Nos. 8, 15, and 17 in 20-16759) and
the State of Arizona’s Motion for Leave to File a Consolidated Reply Brief
(Docket Entry No. 21 in 20-16759).
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