Leslie Feldman v. Arizona Sec'y of State's Ofc.

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 04 2016

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

LESLIE FELDMAN; LUZ No. 16-16698
MAGALLANES; MERCEDEZ
HYMES; JULIO MORERA; CLEO D.C. No. 2:16-cv-01065-DLR
OVALLE; PETERSON ZAH, Former District of Arizona,
Chairman and First President of the Phoenix
Navajo Nation; THE DEMOCRATIC
NATIONAL COMMITTEE; DSCC,
AKA Democratic Senatorial Campaign ORDER
Committee; THE ARIZONA
DEMOCRATIC PARTY;
KIRKPATRICK FOR U.S. SENATE;
HILLARY FOR AMERICA,

Plaintiffs-Appellants,

BERNIE 2016, INC.,

Intervenor-Plaintiff-
Appellant,
v.

ARIZONA SECRETARY OF STATE’S
OFFICE; MICHELE REAGAN, in her
official capacity as Secretary of State of
Arizona; MARICOPA COUNTY
BOARD OF SUPERVISORS; DENNY
BARNEY; STEVE CHUCRI; ANDY
KUNASEK; CLINT HICKMAN;
STEVE GALLARDO, member of the
Maricopa County Board of Supervisors,
in their official capacities; MARICOPA
COUNTY RECORDER AND
ELECTIONS DEPARTMENT; HELEN
PURCELL, in her official capacity as
Maricopa County Recorder; KAREN
OSBORNE, in her official capacity as
Maricopa County Elections Director;
MARK BRNOVICH, in his official
capacity as Arizona Attorney General,

Defendants-Appellees,

THE ARIZONA REPUBLICAN
PARTY,

Intervenor-Defendant-
Appellee.

BEFORE: THOMAS, Chief Judge and O’SCANNLAIN, W. FLETCHER,
RAWLINSON, CLIFTON, BYBEE, CALLAHAN, N. R. SMITH, MURGUIA,
WATFORD, and OWENS, Circuit Judges.

THOMAS, Chief Judge:

We granted, in a prior order, rehearing en banc in this appeal. In a separate

order, filed concurrently with this opinion, we scheduled en banc oral argument for

the week of January 17, 2017, in San Francisco, California. The question, then, is

whether to grant plaintiffs’ motion for an injunction pending appeal. A motions

panel denied the motion in the first instance, but we may reconsider that decision

as an en banc court. For the reasons stated herein, we grant the motion.

The standard for evaluating a stay pending appeal is similar to that employed

by district courts in deciding whether to grant a preliminary injunction. Lopez v.

2
Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983); see also Southeast Alaska

Conservation Council v. U.S. Army Corps of Eng’rs, 472 F.3d 1097, 1100 (9th Cir.

2006) (order) (discussing injunctions pending appeal). Therefore, we grant the

motion for a preliminary injunction pending appeal essentially for the reasons

provided in the dissent in Feldman v. Arizona Sec’y of State, __ F.3d __, 2016 WL

6427146, at *21–31 (9th Cir. 2016), a copy of which is attached (along with a copy

of the majority opinion).

However, there are additional considerations when we consider granting an

injunction pending appeal in an election case. When faced with an appeal in cases

in which an election is pending, federal courts are “required to weigh, in addition

to the harms attendant upon issuance or nonissuance of an injunction,

considerations specific to election cases.” Purcell v. Gonzalez, 549 U.S. 1, 4

(2006) (per curiam). And we do not “lightly interfere with . . . a state election.”

Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003)

(en banc).

At the outset, it is important to remember that the Supreme Court in Purcell

did not set forth a per se prohibition against enjoining voting laws on the eve of an

election. 549 U.S. at 4; see also Veasey v. Perry, 135 S. Ct. 9, 10 (2014)

(Ginsburg, J., dissenting) (“Purcell held only that courts must take careful account

3
of considerations specific to election cases, not that election cases are exempt from

traditional stay standards.”). Rather, courts must assess the particular

circumstances of each case in light of the concerns expressed by the Purcell court

to determine whether an injunction is proper.

In this case, the factors that animated the Supreme Court’s concern in

Purcell are not present. First, the injunction does not affect the state’s election

processes or machinery. The injunction pending appeal sought by plaintiffs would

not change the electoral process, it simply would enjoin enforcement of a

legislative act that would criminalize the collection, by persons other than the

voter, of legitimately cast ballots.

H.B. 2023 amended Arizona’s election statutes to provide that “A person

who knowingly collects voted or unvoted early ballots from another person is

guilty of a class 6 felony.” Ariz. Rev. Stat. § 16-1005(H). Enjoining enforcement

of H.B. 2023 will not have any effect on voters themselves, on the conduct of

election officials at the polls, or on the counting of ballots. Under H.B. 2023, as

the State agrees, legitimate ballots collected by third parties are accepted and

counted, and there are no criminal penalties to the voter. So, under H.B. 2023, if a

ballot collector were to bring legitimate ballots to a voting center, the votes would

be counted, but the collector would be charged with a felony. Thus, the only effect

4
of H.B. 2023, although it is serious, is to make the collection of legitimate ballots

by third parties a felony. So, unlike the circumstances involved in Purcell or

Southwest Voter, the injunction at issue here does not involve any change at all to

the actual election process. That process will continue unaltered, regardless of the

outcome of this litigation. The only effect is on third party ballot collectors, whose

efforts to collect legitimate ballots will not be criminalized, pending our review.

No one else in the electoral process is affected. And no electoral process is

affected.

In contrast, the voter-ID law at issue in Purcell changed who was eligible to

vote and directly told election officials to turn people away if they lacked the

proper proof of citizenship. That circumstance is far different from the case at bar

where, as the district court pointed out, the law “does not eliminate or restrict any

method of voting, it merely limits who may possess, and therefore return, a voter’s

early ballot.” Feldman v. Arizona Sec’y of State, __ F. Supp. 3d __, 2016 WL

5441180 at *9 (D. Ariz. 2016). Thus, in our case, in contrast to Purcell, an

injunction will not confuse election officials or deter people from going to the polls

for fear that they lack the requisite documentation. The election process is

unaffected.

5
 Second, none of the cases that caution against federal court involvement in

elections involved a statute that newly criminalizes activity associated with voting.

This law is unique in that regard.

Third, the concern in Purcell and Southwest Voter was that a federal court

injunction would disrupt long standing state procedures. Here, the injunction

preserves the status quo prior to the recent legislative action in H.B. 2023. Every

other election cycle in Arizona has permitted the collection of legitimate ballots by

third parties to election officials. So, the injunction in this case does not involve

any disruption to Arizona’s long standing election procedures. To the contrary, it

restores the status quo ante to the disruption created by the Arizona legislature that

is affecting this election cycle for the first time.

Fourth, unlike the circumstances in Purcell and other cases, plaintiffs did not

delay in bringing this action. This action was filed less than six weeks after the

passage of the legislation, and plaintiffs have pursued expedited consideration of

their claims at every stage of the litigation, both before the district court and ours.

Indeed, it was the State that opposed an expedited hearing and briefing schedule at

every turn, not the plaintiffs.

Fifth, Purcell was decided prior to the Supreme Court’s opinion in Shelby

Cty. Ala. v. Holder, __ U.S. __, 133 S. Ct. 2612 (2013), which declared

6
unconstitutional the Voting Rights Act’s coverage formula, and effectively

invalidated preclearance requirements under § 5 of the Act. In short, Purcell was

decided when the preclearance regime under § 5 of the Voting Rights Act was still

intact, and Arizona was a covered jurisdiction. The Court in Purcell emphasized

that the challenged law had already passed the then-effective § 5 preclearance

requirements of the United States Department of Justice. As a result, there was a

prima facie reason to believe that the challenged statute was not discriminatory,

alleviating the concern that the law violated voting rights. Purcell, 549 U.S. at 3.

That same reassurance is absent here.

Indeed, this case presents precisely the opposite concern. In 2012, Arizona

submitted a previous iteration of H.B. 2023 for preclearance. The Department of

Justice expressed concern and refused to preclear the bill, S.B. 1412, without more

information about its impact on minority voters. Rather than address this concern,

Arizona withdrew S.B. 1412 from preclearance and repealed it the following

session. Now, unhindered by the obstacle of preclearance, Arizona has again

enacted this law—a mere seven months before the general election—with nothing

standing in its way except this court. Thus, not only are the preclearance

protections considered important in Purcell absent in this case, but it is quite

7
doubtful that the Justice Department would have granted preclearance. In the

wake of Shelby County, the judiciary provides the only meaningful review of

legislation that may violate the Voting Rights Act.1

Sixth, unlike the situation in Purcell, we have, as a court, given careful and

thorough consideration to these issues. Purcell involved a barebones order issued

by a two judge motion panel, which did not contain a reasoned decision. As the

Court described in Purcell, “[t]here has been no explanation given by the Court of

Appeals showing the ruling and findings of the District Court to be incorrect.” 549

U.S. at 5. Here, a three judge merits panel has held oral argument and issued a

detailed, reasoned decision and dissent. Our en banc court has also considered

these issues and reached a decision essentially for the reasons set forth in the

dissent. This is not a case in which our court has issued a stay without a detailed

consideration and resolution of the issues.

1
Meaningful review of H.B. 2023 is especially important because, as I
observed in my dissent, the sponsors of H.B. 2023 could not identify a single
example of voter fraud in Arizona caused by ballot collection, nor is there one to
be found anywhere in the voluminous record before us. Judge Bybee cites to a
2005 report from the bi-partisan Commission on Federal Election Reform, which
recommends that states should reduce the risks of fraud and abuse in absentee
voting by prohibiting “third-party” organizations from handling absentee ballots.
Dissent at 2. However, the Commission’s recommendation was issued before the
Supreme Court invalidated the § 5 preclearance requirement; since that time, the
voting rights landscape has changed considerably, requiring courts to exercise
more vigilance as the primary bulwarks against voter suppression.
8
 In short, the injunction applies to the operation of a statute that would

impose felony sanctions on third parties for previously legal action in connection

with elections when, as everyone concedes, the statute has no impact on the

election process itself. We are preserving the status quo for this election, and we

will consider the challenge to the new legislation at our en banc hearing in the next

few months.

IT IS SO ORDERED.

9
 FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LESLIE FELDMAN; LUZ No. 16-16698
MAGALLANES; MERCEDEZ
HYMES; JULIO MORERA; CLEO D.C. No.
OVALLE; PETERSON ZAH, Former 2:16-cv-01065-DLR
Chairman and First President of
the Navajo Nation; THE
DEMOCRATIC NATIONAL OPINION
COMMITTEE; DSCC, AKA
Democratic Senatorial Campaign
Committee; THE ARIZONA
DEMOCRATIC PARTY;
KIRKPATRICK FOR U.S. SENATE;
HILLARY FOR AMERICA,
Plaintiffs-Appellants,

BERNIE 2016, INC.,
Intervenor-Plaintiff-Appellant,

v.

ARIZONA SECRETARY OF
STATE’S OFFICE; MICHELE
REAGAN, in her official capacity
as Secretary of State of Arizona;
MARICOPA COUNTY BOARD OF
SUPERVISORS; DENNY BARNEY;
STEVE CHUCRI; ANDY KUNASEK;
CLINT HICKMAN; STEVE
GALLARDO, member of the
Maricopa County Board of
2 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

Supervisors, in their official
capacities; MARICOPA COUNTY
RECORDER AND ELECTIONS
DEPARTMENT; HELEN PURCELL,
in her official capacity as
Maricopa County Recorder;
KAREN OSBORNE, in her official
capacity as Maricopa County
Elections Director; MARK
BRNOVICH, in his official
capacity as Arizona Attorney
General,
Defendants-Appellees,

THE ARIZONA REPUBLICAN
PARTY,
Intervenor-Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding

Argued and Submitted October 19, 2016
San Francisco, California

Filed October 28, 2016

Before: Sidney R. Thomas, Chief Judge,
and Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;
Dissent by Chief Judge Thomas
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 3

SUMMARY*

Civil Rights

The panel affirmed the district court’s order denying
plaintiffs’ motion for a preliminary injunction seeking to
prohibit the enforcement of Arizona House Bill 2023, which
precludes individuals who do not fall into one of several
exceptions (e.g., election officials, mail carriers, family
members, household members, and specified caregivers) from
collecting early ballots from another person.

Plaintiffs alleged that Arizona House Bill 2023 violates
§ 2 of the Voting Rights Act of 1965, the Fourteenth
Amendment and the First Amendment because among other
things, it disproportionately and adversely impacts minorities,
unjustifiably burdens the right to vote, and interferes with the
freedom of association.

Addressing the Voting Rights Act claim, the panel held
that the district court did not clearly err in concluding that
plaintiffs adduced no evidence showing that House Bill 2023
would have an impact on minorities different than the impact
on non-minorities, let alone that the impact would result in
less opportunity for minorities to participate in the political
process as compared to non-minorities. The panel held that
because plaintiffs’ failed to present such evidence, the district
court did not err in declining to consider whether House Bill
2023 interacted with racial discrimination to cause a
discriminatory result.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

The panel held that the district court did not clearly err in
(1) finding that House Bill 2023 imposed a minimal burden
on voters’ Fourteenth Amendment right to vote; (2) finding
that Arizona asserted sufficiently weighty interests justifying
the limitation; and (3) ultimately concluding that plaintiffs
failed to establish that they were likely to succeed on the
merits of their Fourteenth Amendment challenge.

The panel held that plaintiffs were unlikely to succeed on
the merits of their First Amendment claim. The panel
concluded that ballot collection is not expressive conduct
implicating the First Amendment, but even if it were, Arizona
has an important regulatory interest justifying the minimal
burden that House Bill 2023 imposes on freedom of
association.

Finally, the panel held that the impact of House Bill 2023
on prospective voters, which the district court found largely
to be inconvenience, did not outweigh the hardship on
Arizona, which has a compelling interest in the enforcement
of its duly enacted laws.

Dissenting, Chief Judge Thomas stated that Arizona has
criminalized one of the most popular and effective methods
by which minority voters cast their ballots, and that the law
violates the Constitution and the Voting Rights Act.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 5

COUNSEL

Bruce V. Spiva (argued), Amanda R. Callais, Elisabeth C.
Frost, and Marc E. Elias, Perkins Coie LLP, Washington,
D.C.; Joshua L. Kaul, Perkins Coie LLP, Madison,
Wisconsin; Sarah R. Gonski and Daniel C. Barr, Perkins Coie
LLP, Phoenix, Arizona; for Plaintiffs-Appellants.

Malcolm Seymour, Garvey Schubert Baker, New York, New
York; D. Andrew Gaona, Andrew S. Gordon, and Roopali H.
Desai, Coopersmith Brockelman PLC, Phoenix, Arizona, for
Intervenor-Plaintiff-Appellant.

Karen J. Hartman-Tellez (argued) and Kara M. Karlson,
Assistant Attorneys General; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona;
for Defendants-Appellees.

Sara J. Agne (argued), Colin P. Ahler, and Brett W. Johnson,
Snell & Wilmer LLP, Phoenix, Arizona, for Intervenor-
Defendants-Appellees.
6 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

OPINION

IKUTA, Circuit Judge:

In April 2016, Leslie Feldman and other appellants1
brought an action in district court challenging Arizona House
Bill 2023 (H.B. 2023), which precludes individuals who do
not fall into one of several exceptions (e.g., election officials,
mail carriers, family members, household members, and
specified caregivers) from collecting early ballots from
another person. See 2016 Ariz. Legis. Serv. Ch. 5, § 1
(H.B. 2023) (West) (codified at Ariz. Rev. Stat. § 16-
1005(H)–(I)). According to Feldman, this state statute
violates § 2 of the Voting Rights Act of 1965, 52 U.S.C.
§ 10301, the Fourteenth Amendment, and the First
Amendment 2 because, among other things, it
disproportionately and adversely impacts minorities,
unjustifiably burdens the right to vote, and interferes with the

1
The appellants here (plaintiffs below) are Leslie Feldman, Luz
Magallanes, Mercedez Hymes, Julio Morera, and Cleo Ovalle, registered
Democratic voters in Maricopa County, Arizona; Peterson Zah, former
Chairman and First President of the Navajo Nation and registered voter in
Apache County, Arizona; the Democratic National Committee; the DSCC,
aka Democratic Senatorial Campaign Committee; the Arizona Democratic
Party; a committee supporting the election of Democratic United States
Representative Ann Kirkpatrick to U.S. Senate; and Hillary for America,
a committee supporting the election of Hillary Clinton as President of the
United States. The intervenor-plaintiff/appellant is Bernie 2016, Inc., a
committee supporting the election of Bernie Sanders as President of the
United States. For convenience, we refer to the appellants as “Feldman.”
2
Because H.B. 2023 is a state law, the challenge technically arises
under the Fourteenth Amendment, which applies the First Amendment’s
protections against States and municipalities. See City of Ladue v. Gilleo,
512 U.S. 43, 45 & n.1 (1994).
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 7

freedom of association. After the district court denied
Feldman’s motion for a preliminary injunction, Feldman filed
this emergency interlocutory appeal. Because the district
court did not abuse its discretion in denying the motion, we
affirm.

I

The district court’s order denying the motion for a
preliminary injunction sets forth the facts in detail, Feldman
v. Ariz. Sec’y of State’s Office, — F. Supp. 3d —, No. CV-16-
01065-PHX-DLR, 2016 WL 5341180 (D. Ariz. Sept. 23,
2016), so we provide only a brief summary of the pertinent
background facts and procedural history. The district court’s
factual findings are discussed in detail as they become
relevant to our analysis.

A

Arizona law permits “[a]ny qualified elector” to “vote by
early ballot.” Ariz. Rev. Stat. § 16-541(A).3 Early voting can
occur by mail or in person at an on-site early voting location
in the 27 days before an election. See id. § 16-542. All
Arizona counties operate at least one on-site early voting
location. Voters may also return their ballots in person at any
polling place without waiting in line, and several counties
additionally provide special drop boxes for early ballot
submission. Moreover, voters can vote early by mail, either
for an individual election or by having their names added to
a permanent early voting list. An early ballot is mailed to

3
A “qualified elector” is any person at least eighteen years of age on
or before the date of the election “who is properly registered to vote.”
Ariz. Rev. Stat. § 16-121(A).
8 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

every person on that list as a matter of course no later than the
first day of the early voting period. Id. § 16-544(F). Voters
may return their early ballot by mail at no cost, but it must be
received by 7:00 p.m. on election day. Id. §§ 16-542(C); 16-
548(A).

Since 1992, Arizona has prohibited any person other than
the elector from having “possession of that elector’s unvoted
absentee ballot.” See 1991 Ariz. Legis. Serv. Ch. 310, § 22
(S.B. 1390) (West). In 1997, the Arizona legislature
expanded that prohibition to prevent any person other than
the elector from having possession of any type of unvoted
early ballot. See 1997 Ariz. Legis. Serv. Ch. 5, § 18 (S.B.
1003) (West) (codified at Ariz. Rev. Stat. § 16-542(D)). As
the Supreme Court of Arizona explained, regulations on the
distribution of absentee and early ballots advance Arizona’s
constitutional interest in secret voting, see Ariz. Const. art.
VII, § 1, “by setting forth procedural safeguards to prevent
undue influence, fraud, ballot tampering, and voter
intimidation.” Miller v. Picacho Elementary Sch. Dist. No.
33, 179 Ariz. 178, 180 (1994) (en banc).

Arizona has long supplemented its protection of the early
voting process through the use of penal provisions, as set
forth in section 16-1005 of Arizona’s statutes. For example,
since 1999, it has been a class 5 felony for a person
knowingly to mark or to punch an early ballot with the intent
to fix an election. See 1999 Ariz. Legis. Serv. Ch. 32, § 12
(S.B. 1227) (codified as amended at Ariz. Rev. Stat. § 16-
1005(A)). And in 2011, Arizona enacted legislation that
made offering to provide any consideration to acquire an
early ballot a class 5 felony. See 2011 Ariz. Legis. Serv. Ch.
105, § 3 (S.B. 1412) (codified at Ariz. Rev. Stat. § 16-
1005(B)). That same legislation regulated the process of
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 9

delivering “more than ten early ballots to an election
official.” See id. (formerly codified at Ariz. Rev. Stat. § 16-
1005(D)).

In 2016, Arizona again revised section 16-1005 by
enacting H.B. 2023 to regulate the collection of early ballots.
This law added the following provisions to the existing
statute imposing penalties for persons abusing the early
voting process:

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:
10 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

(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.

Ariz. Rev. Stat. § 16-1005(H)–(I). Thus, this amendment to
section 16-1005 makes it a felony for third parties to collect
early ballots from voters unless the collector falls into one of
many exceptions. See id. The prohibition does not apply to
election officials acting as such, mail carriers acting as such,
any family members, any persons who reside at the same
residence as the voter, or caregivers, defined as any person
who provides medical or health care assistance to voters in a
range of adult residences and facilities. Id. § 16-1005(I)(2).
H.B. 2023 does not provide that ballots collected in violation
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 11

of this statute are disqualified or disregarded in the final
election tally.

Before H.B. 2023’s enactment, third-party early ballot
collection was available to prospective voters as an additional
and convenient means of submitting a ballot. It was also an
important part of the Democratic get-out-the-vote strategy in
Arizona. Since at least 2002, the Arizona Democratic Party
has collected early ballots from its core constituencies, which
it views to include Hispanic, Native American, and African
American voters. According to Feldman, H.B. 2023’s
limitation on third-party ballot collection will require the
Democratic Party to retool its get-out-the-vote efforts, for
example by increasing voter transportation to polling
locations and revising its training scripts to focus on early in-
person voting. This, in turn, will require the party to divert
resources from projects like candidate promotion to more
direct voter outreach to ensure that voters are either casting
early ballots in person or mailing their ballots on time.

B

Feldman sued Arizona4 in April 2016 alleging: (1) a

4
The appellees here (defendants below) are the Arizona Secretary of
State’s Office; Arizona Secretary of State Michele Reagan in her official
capacity; the Maricopa County Board of Supervisors; members of the
Maricopa County Board of Supervisors Denny Barney, Steve Chucri,
Andy Kunasek, Clint Hickman, and Steve Gallardo in their official
capacities; the Maricopa County Recorder and Elections Department;
Maricopa County Recorder Helen Purcell and Maricopa County Elections
Director Karen Osbourne in their official capacities; and Arizona Attorney
General Mark Brnovich in his official capacity. The intervenor-
defendant/appellee is the Arizona Republican Party. For convenience, we
12 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

violation of § 2 of the Voting Rights Act on account of
H.B. 2023’s disparate adverse impact on voting opportunities
for Hispanics, African Americans, and Native Americans,
(2) a denial of equal protection through unjustifiable
burdening of the right to vote, (3) a denial of equal protection
through disparate treatment, (4) a violation of the First
Amendment right to freedom of association, and (5) a
violation of the First and Fourteenth Amendments through the
“fencing out” of Democratic voters.

In June, Feldman moved for a preliminary injunction
prohibiting the enforcement of H.B. 2023. After full briefing,
the district court denied the motion on September 23, 2016,
on the ground that Feldman was not likely to succeed on the
merits of any of her claims and had therefore also not shown
a likelihood of irreparable harm. As to the § 2 claim, the
district court reviewed the totality of the evidentiary record
and found no evidence of a cognizable disparity between
minority and non-minority voters. The district court held that
Feldman was unlikely to succeed on her Fourteenth
Amendment claim because H.B. 2023’s burden on voting was
minimal and justified by the State’s interests in preventing
absentee voter fraud and the perception of fraud. As to
Feldman’s First Amendment claims, the district court held
that collecting ballots is not an expressive activity and that
even if it were, the State’s regulatory interests were sufficient
to justify the slight burden that H.B. 2023 imposes. The
district court likewise ruled that Feldman was unlikely to
succeed on her partisan fencing claim.

refer to the appellees as “Arizona,” where appropriate, and otherwise use
their individual names.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 13

Feldman filed a timely notice of interlocutory appeal on
the same day that the district court entered its order, and a
few days later she filed an emergency motion in the district
court to stay its order and enjoin the enforcement of
H.B. 2023 pending appeal. The district court noted that the
standard for obtaining an injunction pending appeal was the
same as the standard for obtaining a preliminary injunction
and denied the motion because Feldman had not shown that
she was likely to succeed on the merits, Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008), or that “there are
serious questions going to the merits” and “the balance of
hardships tips sharply in the plaintiff’s favor.” All. for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

Feldman filed an emergency motion with this court for an
injunction pending appeal and for an expedited appeal. On
October 14, a motions panel denied the former request, but
granted the latter. The parties were directed to file
simultaneous merits briefs by October 17, and the appeal was
argued orally on October 19.5

II

We have jurisdiction over this interlocutory appeal
pursuant to 28 U.S.C. § 1292(a)(1). On an appeal from the
denial of a preliminary injunction, we do not review the
underlying merits of the claims. Sw. Voter Registration Educ.

5
In addition to this appeal, Feldman appealed another of the district
court’s orders denying a separate motion to enjoin preliminarily other
election practices challenged in the complaint. That appeal has similarly
been expedited and will be the subject of a separate disposition. See
Feldman v. Arizona Sec’y of State’s Office, No. 16-16865, — F.3d — (9th
Cir. 2016).
14 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en
banc) (per curiam). Instead, “[o]ur review is limited and
deferential,” id., and we must affirm the district court’s order
unless the district court abused its discretion. Hendricks v.
Bank of Am., N.A., 408 F.3d 1127, 1139 (9th Cir. 2005).

Our abuse-of-discretion analysis proceeds in two steps.
See Gilman v. Schwarzenegger, 638 F.3d 1101, 1105–06 (9th
Cir. 2011) (citing United States v. Hinkson, 585 F.3d 1247,
1261 (9th Cir. 2009) (en banc)). At step one, we ask whether
the district court “based its ruling on an erroneous view of the
law,” Bay Area Addiction Research & Treatment, Inc. v. City
of Antioch, 179 F.3d 725, 730 (9th Cir. 1999), reviewing the
district court’s interpretation of underlying legal principles de
novo, Shelley, 344 F.3d at 918. We then ask whether the
district court’s application of the legal standard was illogical,
implausible, or otherwise without support in inferences that
may be drawn from the facts in the record. Hinkson,
585 F.3d at 1262. “We review findings of fact for clear
error.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d
1281, 1286 (9th Cir. 2013). “[A]s long as the district court
got the law right, it will not be reversed simply because the
appellate court would have arrived at a different result if it
had applied the law to the facts of the case.” Id. (quoting
Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th
Cir. 2011)).6

6
The dissent suggests that the district court’s factual findings are
entitled to less weight here because “the district court did not conduct any
evidentiary hearings to resolve disputed factual issues” and “the parties’
submissions were by affidavit.” See Dissent at 56–57 n.1. Our review of
factual findings, however, does not change based on the nature of the
evidence. “Findings of fact, whether based on oral or other evidence,
must not be set aside unless clearly erroneous.” Fed. R. Civ. P. 52(a)(6);
see also Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 15

A preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter, 555 U.S. at 22. The
standard to obtain such relief is accordingly stringent: “A
plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is
in the public interest.” Id. at 20. A plaintiff must make a
showing as to each of these elements, although in our circuit
“if a plaintiff can only show that there are ‘serious questions
going to the merits’—a lesser showing than likelihood of
success on the merits—then a preliminary injunction may still
issue if the ‘balance of hardships tips sharply in the plaintiff’s
favor,’ and the other two Winter factors are satisfied.” Shell
Offshore, 709 F.3d at 1291. “That is, ‘serious questions
going to the merits’ and a balance of hardships that tips
sharply towards the plaintiff can support issuance of a
preliminary injunction, so long as the plaintiff also shows that
there is a likelihood of irreparable injury and that the

(“Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous. This is so even when
the district court’s findings do not rest on credibility determinations, but
are based instead on physical or documentary evidence and inferences
from other facts.” (citations omitted)). It is immaterial that the fact-
finding occurred here at the preliminary injunction stage; Rule 52(a)(6) by
its terms applies to all findings of fact, which necessarily includes the
findings of fact that “the court must . . . state” to support denial of an
interlocutory injunction, see Fed. R. Civ. P. 52(a)(2). See Anderson,
470 U.S. at 574 (“Rule 52(a) ‘does not make exceptions or purport to
exclude certain categories of factual findings from the obligation of a
court of appeals to accept a district court’s findings unless clearly
erroneous.’” (quoting Pullman-Standard v. Swint, 456 U.S. 273, 287
(1982))).
16 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

injunction is in the public interest.” All. for the Wild Rockies,
632 F.3d at 1135.

When faced with a request to interfere with a state’s
election laws “just weeks before an election,” federal courts
are “required to weigh, in addition to the harms attendant
upon issuance or nonissuance of an injunction, considerations
specific to election cases.” Purcell v. Gonzalez, 549 U.S. 1,
4 (2006) (per curiam). These considerations often counsel
restraint. In the context of legislative redistricting, for
example, the Supreme Court has long cautioned that “where
an impending election is imminent and a State’s election
machinery is already in progress, equitable considerations
might justify a court in withholding the granting of
immediately effective relief . . . even though the existing
apportionment scheme was found invalid.” Reynolds v. Sims,
377 U.S. 533, 585 (1964). Similarly, the Supreme Court has
declined to order the printing of new ballots at a “late date”
even where the existing ballots were held to have
unconstitutionally excluded certain candidates. Williams v.
Rhodes, 393 U.S. 23, 34 (1968). We have also declined on
equitable grounds to interfere with the mechanics of fast-
approaching elections. See Lair v. Bullock, 697 F.3d 1200,
1214 (9th Cir. 2012) (staying a district court’s injunction
“given the imminent nature of the election”); Shelley,
344 F.3d at 919 (declining to enjoin an imminent recall
election). And we are not alone in doing so. See, e.g.,
Veasey v. Abbott, 830 F.3d 216, 243 (5th Cir. 2016) (en banc)
(“[T]he district court should fashion an appropriate remedy in
accord with its findings; provided, however, that any remedy
will not be made effective until after the November 2016
election.”); Veasey v. Perry, 769 F.3d 890, 895 (5th Cir.
2014) (staying an injunction “in light of the importance of
maintaining the status quo on the eve of an election”); Colon-
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 17

Marrero v. Conty-Perez, 703 F.3d 134, 139 n.9 (1st Cir.
2012) (noting that “even where plaintiff has demonstrated a
likelihood of success, issuing an injunction on the eve of an
election is an extraordinary remedy with risks of its own”);
Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 345
(6th Cir. 2012) (“As a general rule, last-minute injunctions
changing election procedures are strongly disfavored.”); Ne.
Ohio Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1012
(6th Cir. 2006) (vacating in part a temporary restraining order
that “needlessly creates disorder in electoral processes”).

III

With these principles in mind, we turn to our review of
the district court’s order denying Feldman’s motion for a
preliminary injunction against the enforcement of H.B. 2023.
On appeal, Feldman argues that the district court erred in
concluding that she was unlikely to succeed on her Voting
Rights Act, Fourteenth Amendment, and First Amendment
claims.7 We consider each of these arguments in turn.

A

We first consider Feldman’s claim that H.B. 2023 violates
§ 2 of the Voting Rights Act.

1

“Inspired to action by the civil rights movement,”
Congress enacted the Voting Rights Act of 1965 to improve

7
Feldman does not raise the claim that H.B. 2023 is invalid because
it was intended to suppress votes based on partisan affiliation or
viewpoint, i.e., a theory of prohibited partisan fencing.
18 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

enforcement of the Fifteenth Amendment.8 Shelby County v.
Holder, 133 S. Ct. 2612, 2619 (2013). Section 5 of the Act
prevented states from making certain changes in voting
procedures unless those changes obtained “preclearance,”
meaning they were approved by either the Attorney General
or a court of three judges. Id. at 2620. Section 2 of the Act
forbade all states from enacting any “standard, practice, or
procedure . . . imposed or applied . . . to deny or abridge the
right of any citizen of the United States to vote on account of
race or color.” Id. at 2619 (quoting Voting Rights Act of
1965, § 2, 79 Stat. 437).

“At the time of the passage of the Voting Rights Act of
1965, § 2, unlike other provisions of the Act, did not provoke
significant debate in Congress because it was viewed largely
as a restatement of the Fifteenth Amendment.” Chisom v.
Roemer, 501 U.S. 380, 392 (1991). In 1980, a plurality of the
Supreme Court held that the Fifteenth Amendment, and
therefore the Voting Rights Act, were violated only if there
was intentional discrimination on account of race. City of
Mobile v. Bolden, 446 U.S. 55, 60–62 (1980) (plurality
opinion).

In response to Bolden, “Congress substantially revised § 2
to make clear that a violation could be proved by showing
discriminatory effect alone and to establish as the relevant
legal standard the ‘results test,’” applied by the Supreme
Court in White v. Regester, 412 U.S. 755 (1973), and by other

8
The Fifteenth Amendment provides that “[t]he right of citizens of
the United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition of
servitude,” and authorizes Congress to enforce the provision “by
appropriate legislation.” U.S. Const. amend. XV.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 19

federal courts before Bolden. Thornburg v. Gingles, 478 U.S.
30, 35 (1986). Opinions decided before Bolden had
addressed “vote dilution” claims, that is, challenges to
practices that diluted a minority group’s voting power. See
Shaw v. Reno, 509 U.S. 630, 641 (1993). In amending § 2,
Congress acted to “prohibit legislation that results in the
dilution of a minority group’s voting strength, regardless of
the legislature’s intent.” Id. (emphasis omitted); see also
Gingles, 478 U.S. at 47–51. Section 2 also applied to “vote
denial” claims, meaning challenges to practices that denied
citizens the opportunity to vote, such as literacy tests.

As amended in the 1982 amendments, Section 2 of the
Voting Rights Act provides:

§10301. Denial or abridgement of right to
vote on account of race or color through
voting qualifications or prerequisites;
establishment of violation

(a) No voting qualification or prerequisite to
voting or standard, practice, or procedure shall
be imposed or applied by any State or political
subdivision in a manner which results in a
denial or abridgement of the right of any
citizen of the United States to vote on account
of race or color, or in contravention of the
guarantees set forth in section 10303(f)(2) of
this title, as provided in subsection (b).

(b) A violation of subsection (a) is established
if, based on the totality of circumstances, it is
shown that the political processes leading to
nomination or election in the State or political
20 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

subdivision are not equally open to
participation by members of a class of citizens
protected by subsection (a) in that its
members have less opportunity than other
members of the electorate to participate in the
political process and to elect representatives
of their choice.

52 U.S.C. § 10301.

The Supreme Court interpreted this language in
Thornburg v. Gingles, 478 U.S. 30. Gingles explained that to
make out a § 2 violation, a plaintiff must show that “under the
totality of the circumstances, a challenged election law or
procedure had the effect of denying a protected minority an
equal chance to participate in the electoral process.” Id. at 44
n.8. The “totality of the circumstances” includes factors that
the Senate derived from cases decided before Bolden. See
id.9 As summarized by the Court, “[t]he essence of a § 2

9
As explained in Gingles, the relevant factors include:

1. the extent of any history of official discrimination in
the state or political subdivision that touched the right
of the members of the minority group to register, to
vote, or otherwise to participate in the democratic
process;

2. the extent to which voting in the elections of the state
or political subdivision is racially polarized;

3. the extent to which the state or political subdivision
has used unusually large election districts, majority
vote requirements, anti-single shot provisions, or other
voting practices or procedures that may enhance the
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 21

claim is that a certain electoral law, practice, or structure
interacts with social and historical conditions to cause an

opportunity for discrimination against the minority
group;

4. if there is a candidate slating process, whether the
members of the minority group have been denied
access to that process;

5. the extent to which members of the minority group in
the state or political subdivision bear the effects of
discrimination in such areas as education, employment
and health, which hinder their ability to participate
effectively in the political process;

6. whether political campaigns have been characterized
by overt or subtle racial appeals;

7. the extent to which members of the minority group
have been elected to public office in the jurisdiction.

Additional factors that in some cases have had
probative value as part of plaintiffs’ evidence to
establish a violation are:

whether there is a significant lack of responsiveness on
the part of elected officials to the particularized needs
of the members of the minority group.

whether the policy underlying the state or political
subdivision’s use of such voting qualification,
prerequisite to voting, or standard, practice or
procedure is tenuous.

478 U.S. at 36–37 (internal quotation marks omitted). The Supreme Court
has stated that another relevant factor is “[a] State’s justification for its
electoral system.” Houston Lawyers’ Ass’n v. Attorney Gen. of Tex.,
501 U.S. 419, 426–27 (1991).
22 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

inequality in the opportunities enjoyed by black and white
voters to elect their preferred representatives.” Id. at 47.

Although many courts have analyzed vote dilution claims,
“there is little authority on the proper test to determine
whether the right to vote has been denied or abridged on
account of race.” Veasey v. Abbott, 830 F.3d at 244
(emphasis omitted); see also Ohio Democratic Party v.
Husted, 834 F.3d 620, No. 16-3561, 2016 WL 4437605 (6th
Cir. Aug. 23, 2016).10 Recently, the Fourth, Fifth, and Sixth
Circuits (and, in part, the Seventh Circuit) have adopted a
two-part framework, based on the text of § 2 and the Supreme
Court’s guidance in Gingles. The test is as follows:

[1] [T]he challenged standard, practice, or
procedure must impose a discriminatory
burden on members of a protected class,
meaning that members of the protected class
have less opportunity than other members of

10
Vote dilution can occur, for instance, where a practice has the effect
of reducing or nullifying “minority voters’ ability, as a group, to elect the
candidate of their choice,” Shaw, 509 U.S. at 641 (internal quotation
marks omitted), and typically involves different arguments and evidence
than in vote denial claims. For instance, Gingles explained that to prove
that use of multimember districts gives minorities less opportunity to elect
representatives of their choice in violation of § 2, a plaintiff would
generally have to demonstrate: (1) that the minority group at issue is both
“sufficiently large and geographically compact to constitute a majority in
a single-member district” and “politically cohesive,” and (2) that “the
white majority votes sufficiently as a bloc to enable it—in the absence of
special circumstances, such as the minority candidate running
unopposed—usually to defeat the minority’s preferred candidate.”
478 U.S. at 50–51 (citations omitted). Such evidence would generally not
be applicable to a claim that a specific practice unequally burdens the right
to participate in the political process (a vote denial claim).
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 23

the electorate to participate in the political
process and to elect representatives of their
choice, [and]

[2] [T]hat burden must in part be caused by or
linked to social and historical conditions that
have or currently produce discrimination
against members of the protected class.

League of Women Voters of N.C. v. North Carolina, 769 F.3d
224, 240 (4th Cir. 2014); Veasey v. Abbott, 830 F.3d at 244;
Ohio Democratic Party, 2016 WL 4437605 at *13–14; Frank
v. Walker, 768 F.3d 744, 754–55 (7th Cir. 2014) (adopting
the test “for the sake of argument”).

We agree with this two-part framework, which is
consistent with Supreme Court precedent, our own precedent,
and with the text of § 2. Under the first prong, a plaintiff
must show that the challenged voting practice results in
members of a protected minority group having less
opportunity than other members of the electorate to
participate in the political process. Gonzalez v. Arizona,
677 F.3d 383, 405 (9th Cir. 2012) (en banc) (citing Smith v.
Salt River Project Agric. Improvement & Power Dist.,
109 F.3d 586, 595 (9th Cir. 1997)). This language
“encompasses Section 2’s definition of what kinds of burdens
deny or abridge the right to vote.” Veasey v. Abbott, 830 F.3d
at 244. Section 2(a) prohibits a state or political subdivision
from imposing any “voting qualification or prerequisite to
voting” or other “standard, practice, or procedure” in a way
that “results in a denial or abridgement” of any U.S. citizen’s
right to vote on account of race, color, or membership in “a
language minority group,” 52 U.S.C. § 10303(f), “as provided
in subsection (b).” Id. § 10301(a). Subsection (b), in turn,
24 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

provides that a plaintiff can establish a violation of § 2(a) if
“based on the totality of circumstances,” the “political
processes leading to nomination or election in the State or
political subdivision are not equally open to participation” by
members of a protected class “in that its members have less
opportunity than other members of the electorate to
participate in the political process and to elect representatives
of their choice.” Id. § 10301(b).

In interpreting this first prong, we have held that “a bare
statistical showing of disproportionate impact on a racial
minority does not satisfy the § 2 ‘results’ inquiry.” Salt
River, 109 F.3d at 595 (emphasis omitted). Rather, “Section
2 plaintiffs must show a causal connection between the
challenged voting practice and [a] prohibited discriminatory
result.” Id. As explained by the Sixth Circuit, a “challenged
standard or practice causally contributes to the alleged
discriminatory impact by affording protected group members
less opportunity to participate in the political process.” Ohio
Democratic Party, 2016 WL 4437605, at *13.

The second prong “draws on the Supreme Court’s
guidance in Gingles,” Veasey v. Abbott, 830 F.3d at 245,
which explains the language in § 2(b) requiring a plaintiff to
show a violation of the Act “based on the totality of
circumstances.” 52 U.S.C. § 10301(b). Under this second
prong, the plaintiff must show that the challenged practice
interacted with racial discrimination “to cause an inequality
in the opportunities enjoyed by [minority] and [non-minority]
voters to elect their preferred representatives.” Gingles,
478 U.S. at 47; see also Gonzalez, 677 F.3d at 405–06. In
Gonzalez, we did not have occasion to reach this second step
because the plaintiff had adduced no evidence of a causal
connection between the challenged photo ID law and a
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 25

disproportionate burden on minorities. 677 F.3d at 407. If a
plaintiff adduces no evidence that the challenged practice
places a burden on protected minorities that causes them to
have “less opportunity than other members of the electorate
to participate in the political process and to elect
representatives of their choice,” 52 U.S.C. § 10301(b), there
is no § 2 violation “whether or not” the challenged practice is
“interacting with the history of discrimination” at the second
prong of the test, Gonzalez, 677 F.3d at 407. However, we
agree with our sister circuits that to show a § 2 violation, a
plaintiff must establish that the challenged practice imposes
a disproportionate burden on minorities compared to non-
minorities, and that the challenged law interacts with social
and historical conditions that have produced discrimination
to cause minorities to have fewer opportunities to participate
in the electoral process. See League of Women Voters of
N.C., 769 F.3d at 240; Veasey v. Abbott, 830 F.3d at 244;
Ohio Democratic Party, 2016 WL 4437605, at *13–14.

The district court’s legal determinations are reviewed de
novo, Gonzalez, 677 F.3d at 406, but we defer to “the district
court’s superior fact-finding capabilities,” and review its
factual findings for clear error, Salt River, 109 F.3d at 591.
In analyzing the first prong of a § 2 claim, the district court
has the primary responsibility for determining “based ‘upon
a searching practical evaluation of the past and present
reality,’. . . whether the political process is equally open to
minority voters.” Id. (quoting Gingles, 478 U.S. at 79). At
the second prong of a § 2 claim, the district court must make
the “ultimate finding whether, under the totality of the
circumstances, the challenged practice violates § 2.”
26 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

Gonzalez, 677 F.3d at 406. This “ultimate finding” is a
question of fact that we review for clear error.11 Id.

2

This case raises a vote denial claim, in that Feldman
claims that H.B. 2023’s restriction on the use of certain third-
party ballot collectors denies or abridges minorities’
opportunity to vote. As to the first prong of a § 2 claim,
Feldman argues that H.B. 2023 caused minority group
members to have less opportunity to participate in the
political process than non-minorities. Feldman bases this
claim on a multi-step argument. First, Feldman points to
evidence in the record that minorities are statistically less
likely than non-minorities to have access to a vehicle, are
more likely to have lower levels of education and English
proficiency than non-minorities, are more likely to suffer
from health problems than non-minorities, are more likely to
have difficult financial situations than non-minorities, and are
more likely than non-minorities to rent houses rather than
own them, which in turn makes them more likely to move

11
The dissent does not dispute that under Gonzalez, the ultimate
question is one of fact. Dissent at 56 n.1. Yet, the dissent argues that the
district court’s assessment of the likelihood of success on the merits of this
ultimate question should be reviewed de novo because we are at the
preliminary injunction stage, and the question is a mixed question of law
and fact. See id. at 56–57 n.1. We disagree. Our conclusion that the clear
error standard applies in reviewing a trial court’s determination at the
merits stage is equally applicable at the preliminary injunction stage. See,
e.g., Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th Cir.
2014) (holding, in an appeal from an order denying a motion for a
preliminary injunction, that the clear error standard applies to the district
court’s determination concerning likelihood of confusion, a mixed
question of law and fact, because we had previously held that this standard
was applicable to such determinations at the merits stage).
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 27

than homeowners. Second, she argues that each of these
differences between minorities and non-minorities shows that
minorities must rely on ballot collection by third parties more
than non-minorities because minorities have less ability to
make use of other alternative means of voting (such as voting
by mail or in person). According to Feldman, this evidence
shows that the burdens of H.B. 2023 fall more heavily on
minorities than non-minorities. Feldman further contends
that she satisfied the second prong of the § 2 test by
introducing substantial evidence supporting eight of the nine
Senate Factors.

The district court rejected this argument at the first prong
of the § 2 test based on its determination that Feldman failed
to show that H.B. 2023 will cause protected minorities to
have less electoral opportunities than non-minorities. The
district court based its conclusion on both a per se legal rule
and on its review of the evidence. First, the district court held
that Feldman failed to provide any quantitative or statistical
data showing that H.B. 2023’s rule precluding the use of
certain third-party ballot collectors had a disparate impact on
minorities compared to the impact on non-minorities. The
district court determined that as a matter of law, such data
was necessary in order to establish a § 2 violation. Feldman
does not dispute that she did not provide any direct data on
the use of third-party ballot collectors,12 but argues such data

12
Feldman contends that her failure to adduce evidence that ballot
collection restrictions place a heavier burden on minorities than non-
minorities should be excused because Arizona failed to track how early
ballots are returned. As plaintiff, however, Feldman has the obligation of
carrying her burden of proof. See Gingles, 478 U.S. at 46. Moreover, the
record indicates that Feldman had equal ability to generate the required
data. Early ballots have been collected in Arizona since at least 2002, and
surveys could have determined the racial composition of voters who rely
28 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

is not necessary to show a disproportionate burden on
minorities, and so the district court’s ruling to the contrary
was legal error.

While § 2 itself does not require quantitative evidence,
past cases suggest that such evidence is typically necessary to
establish a disproportionate burden on minorities’ opportunity
to participate in the political process.13 See, e.g., Veasey v.
Abbott, 830 F.3d at 244 (noting that “courts regularly utilize
statistical analyses to discern whether a law has a
discriminatory impact”); Frank, 768 F.3d at 752; Gonzalez,
677 F.3d at 405–07. Indeed, we are unaware of a vote denial
case holding that a challenged practice placed a
disproportionate burden on a protected minority leading to
“less opportunity than other members of the electorate to
participate in the political process and to elect representatives

on others to collect their early ballot in Arizona. Moreover, the Arizona
Democratic Party admits that collecting early votes has been an “integral
part of the Arizona Democratic Party’s get-out-the-vote strategy” since at
least 2002. Neither the Arizona Democratic Party nor any other
organizational plaintiff has explained why it could not have compiled data
on the race of the voters utilizing ballot collection given that the
organizations collecting ballots appear to be in the best position to gather
such information.
13
The dissent appears to conflate the district court’s rule that
quantitative data is necessary to establish the first prong of a § 2 violation
with a rule that only actual post-election voting data can establish a § 2
violation. Dissent at 68. While the Third Circuit has suggested that
plaintiffs must prove that a challenged practice has an impact on minority
voter turnout, see Ortiz v. City of Phila. Office of City Comm’rs Voter
Registration Div., 28 F.3d 306, 314 (3d Cir. 1994), the district court did
not do so, and other circuits have evaluated pre-election challenges by
considering statistical evidence regarding voting registration, voter turnout
in prior elections, Ohio Democratic Party, 2016 WL 4437605, at *14, and
the possession of qualifying voter ID, Veasey v. Abbott, 830 F.3d at 250.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 29

of their choice” under § 2 without such quantitative or
statistical data. 52 U.S.C. § 10301(b).14 Notably, Feldman
did present statistical evidence in our companion case,
discussed supra n.5.

We need not resolve this legal issue, however, because
despite its ruling regarding the lack of statistical or
quantitative evidence, the district court proceeded to review
all the evidence in the record and rested its conclusion that
Feldman had failed to satisfy the first prong of § 2 on the
alternate ground that Feldman did not show that the burden of
H.B. 2023 impacted minorities more than non-minorities.
Deferring to “the district court’s superior fact-finding
capabilities,” Salt River, 109 F.3d at 591, we conclude that
this holding is not clearly erroneous.

To satisfy the first prong, Feldman adduced several
different categories of evidence, including individual
declarations, legislative history, and files from the
Department of Justice.

14
Feldman relies on two out-of-circuit vote dilution cases to support
her argument that statistical evidence is not required in the application of
the factors laid out in Gingles. See, e.g., Sanchez v. Colorado, 97 F.3d
1303, 1320–21 (10th Cir. 1996); Jenkins v. Red Clay Consol. Sch. Dist.
Bd. of Educ., 4 F.3d 1103, 1126 (3d Cir. 1993). But these cases indicate
only that when minority voters claim that racial bloc voting will defeat
their opportunity to elect a candidate of their choice, they may rely on a
range of evidence to prove that a particular candidate is the preferred
minority candidate. See Sanchez, 97 F.3d at 1320–21; Jenkins, 4 F.3d at
1126. Neither case addresses the evidence required to show that a practice
results in protected minorities having less opportunity to participate in the
political process than non-minorities. See League of Women Voters of
N.C., 769 F.3d at 240; Veasey v. Abbott, 830 F.3d at 244. As noted supra
n.10, different evidence may be required to prove a vote denial claim than
to prove a vote dilution claim.
30 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

First, the record includes the declarations of Arizona
Democratic lawmakers and representatives of organizations
that have collected and returned ballots in prior elections.
These declarations generally state that members of the
communities they have assisted rely on ballot collection
services by third parties. The district court discounted this
testimony because the declarants did not provide any
comparison between the minority communities and non-
minority communities. The record supports this finding. The
majority of the declarants focused their efforts and obtained
their experiences in minority communities.15 None of these
declarants compared the impact of H.B. 2023 on minorities
as compared to non-minorities. While two of the declarations
made conclusory statements that H.B. 2023
“disproportionately impacts” protected minorities, it is not
clear error for the district court to discount such statements,
where the declarant did not provide the basis for the
conclusion. Cf. Herb Reed Enters., LLC v. Fla. Entm’t
Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013) (indicating

15
For instance, Declarant Randy Parraz stated that his organization,
Citizens for a Better Arizona, “focuse[s] its get-out-the-vote efforts on
helping low-income Latino voters.” Ian Danley’s declaration states that
his non-partisan organization, One Arizona, typically engages with voters
in neighborhoods that are heavily Latino. Declarants Joseph Larios and
Ken Chapman work for the Center for Neighborhood Leadership, which
focuses its efforts in “low-income African American and Latino
neighborhoods.” The Arizona Democratic lawmakers who provided
declarations represent constituents who are predominately ethnic
minorities. For example, Representative Ruben Gallego “represent[s]
approximately 763,000 constituents, nearly 80% of whom are ethnic
minorities.” State Senator Martin Quezada “represent[s] approximately
213,000 constituents, nearly 80% of which are ethnic minorities.” Kate
Gallego, the Vice Mayor of the City of Phoenix, represents a district that
“is heavily Latino and has the highest percentage—15%—of African
Americans in any district in Phoenix.”
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 31

that a district court should not rely on “unsupported and
conclusory statements” when finding facts as part of a
preliminary injunction analysis).

Other declarations submitted to the district court stated
generally that ballot collection by third parties benefits
elderly voters, homebound voters, forgetful voters, undecided
voters, and voters from rural areas, but the court found no
evidence that these categories of voters were more likely to
be minorities than non-minorities. Again, this finding is not
clearly erroneous. For instance, the district court stated that
while Feldman had provided evidence that the rural
communities of Somerton and San Luis were 95.9% and
98.7% Hispanic or Latino and lacked home mail delivery, she
did not provide evidence about home mail delivery to non-
minorities who reside in the rural communities of Colorado
City, Fredonia, Quartzite, St. David, Star Valley, and
Wickenburg that are 99.5%, 89.1%, 92.5%, 92.1%, 91.4%,
and 90.5% white, respectively. Similarly, while the record
shows that the Tohono O’odham Nation lacks home mail
delivery service, Feldman does not point to evidence showing
that H.B. 2023 has a disproportionate impact on members of
the Tohono O’odham Nation compared to non-minorities
who also live in rural communities.16 The district court also
rejected Feldman’s argument that declarations provided by

16
The dissent emphasizes that the evidence regarding the lack of mail
delivery service to the Tohono O’odham Nation and the rural communities
of Somerton and San Luis was not contested. Dissent at 72. But the issue
is not whether minority voters have limited access to mail delivery
service; rather, the issue is whether due to H.B. 2023, minorities “have
less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice.” 52 U.S.C.
§ 10301(b) (emphasis added). Without evidence regarding non-minorities,
the comparison required by § 2 cannot be made.
32 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

Sergio Arellano, President of the Tucson Chapter of the
Arizona Latino Republican Association, and Kevin Dang,
President of the Vietnamese Community of Arizona, admitted
that “minority voters disproportionately rely on ballot
collection.” The district court concluded that these
declarations indicated only that minorities are
disproportionately vulnerable to being taken advantage of by
ballot collectors because they often do not understand
English. This conclusion was not clear error.

In addition to the multiple declarations described above,
Feldman submitted legislative testimony from the debates on
H.B. 2023, showing that a number of lawmakers expressed
concerns that H.B. 2023 would impact minority communities,
rural communities, working families, and the elderly. This
evidence likewise failed to compare minority communities to
non-minority communities.

Finally, the district court considered the Department of
Justice’s files regarding its evaluation of S.B. 1412 (a prior
Arizona bill proposing ballot collection restrictions) for
purposes of determining whether the bill was entitled to
preclearance under § 5 of the Voting Rights Act.17 The file

17
At the time of S.B. 1412’s enactment, Arizona was still subject to
Section 5 of the Voting Rights Act, which required Arizona to receive
preclearance from the Department of Justice or a federal court convened
in the United States District Court for the District of Columbia before
implementing a new voting standard, practice, or procedure. 52 U.S.C.
§ 10304. The Arizona Attorney General submitted S.B. 1412 to the
Department of Justice for preclearance. The Department of Justice
requested additional information about S.B. 1412’s ballot collection
restrictions, but did not complete its evaluation of S.B. 1412 because the
Arizona legislature repealed the ballot-collection measure as a part of an
omnibus bill in 2012.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 33

contained summaries of telephone conversations between a
Department of Justice attorney and various individuals about
ballot collection practices in Arizona. None of these
summaries provide a comparison of the effect of S.B. 1412 on
minorities and non-minorities. Feldman claims that a
summary of a phone call with then-Arizona Elections
Director Amy Bjelland shows that Arizona legislators
targeted S.B. 1412 at Hispanic communities. The district
court, however, reasonably interpreted this phone summary
as stating that the impetus for S.B. 1412 was an accusation of
voter fraud in San Luis, a predominately Hispanic area in the
southern portion of Arizona, that S.B. 1412 was aimed at this
sort of fraud, and that in Bjelland’s view, voter fraud was
more prevalent at the border because individuals living closer
to the border are more impacted by corruption and voting
fraud claimed to exist in Mexico.

On appeal, Feldman argues that the district court erred
because it did not accept her multi-step argument that she met
the first prong of § 2 based on evidence that certain
socioeconomic circumstances disparately impact minorities,
and this disparate impact would combine with a lack of
certain third-party ballot collectors to lessen minorities’
opportunities in the political process. We reject this
argument. Feldman’s evidence of differences in the
socioeconomic situation of minorities and non-minorities
does not satisfy the first prong of the § 2 test because it does
not show that H.B. 2023 causes a protected minority group to
have less opportunity than other members of the electorate to
participate in the political process. See Gingles, 478 U.S. at
44 n.8. Proof of a causal connection between the challenged
voting practice and a prohibited result is “crucial,” Gonzalez,
677 F.3d at 405 (citing Salt River, 109 F.3d at 595), and
Feldman points to no evidence that the restriction on third-
34 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

party ballot collection causes minorities to have less
opportunity to vote than non-minorities. Indeed, although
H.B. 2023 was in effect for all but the first three days of early
voting for the Primary Election, the record does not include
any testimony by minority voters that their ability to
participate in the political process was affected by the
inability to use a third-party ballot collector. The district
court did not clearly err in declining to make the inference
urged by Feldman (i.e., that due to minorities’ socioeconomic
status, they were likely to have fewer opportunities than non-
minorities to participate in the political process if they could
not use certain third-party ballot collectors) in the absence of
evidence supporting that inference.

We rejected a similar argument in Gonzalez. As in this
case, the plaintiff in Gonzalez argued that a law requiring
prospective voters to obtain a photo identification before they
cast ballots at the polls violated § 2 because it had a
statistically significant disparate impact on Latino voters.
677 F.3d at 406. To support this argument, the plaintiff
presented evidence “of Arizona’s general history of
discrimination against Latinos and the existence of racially
polarized voting.” Id. at 407. Despite this general history of
discrimination, we affirmed the district court’s rejection of
this claim, because the plaintiff was unable to produce
evidence that the photo identification law caused minorities
to have less opportunity to participate in the political process.
Id.; see also Frank, 768 F.3d at 752–55 (holding that a photo
identification law which had a disparate impact on minorities
did not violate § 2 because plaintiffs failed to show that the
law had caused a discriminatory result). For the same reason,
Feldman’s evidence regarding the socioeconomic situation of
minorities is insufficient in the absence of evidence that
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 35

H.B. 2023 caused minorities to have less opportunity to
participate in the political process.

In short, the district court did not clearly err in concluding
that Feldman adduced no evidence showing that H.B. 2023
would have an impact on minorities different than the impact
on non-minorities, let alone that the impact would result in
less opportunity for minorities to participate in the political
process as compared to non-minorities.18 Because the court
found that Feldman’s § 2 claim failed at the first prong, as in
Gonzalez, the district court had no obligation to reach the
second prong, and therefore did not err in declining to
consider whether H.B. 2023 interacted with racial
discrimination to cause a discriminatory result. See 677 F.3d
at 407.19 The district court’s conclusion that H.B. 2023 did
not violate § 2 was not “(1) illogical, (2) implausible, or
(3) without support in inferences that may be drawn from the
facts in the record,” Hinkson, 585 F.3d at 1262 (internal

18
The dissent argues that once plaintiffs have established a burden on
minority voters, a “burden of rejoinder” should be placed on the state.
Dissent at 72–73. But § 2 requires more than merely showing a burden on
minorities. It requires plaintiffs to establish that minorities “have less
opportunity than other members of the electorate to participate in the
political process.” 52 U.S.C. § 10301. We have held that it is not enough
for the plaintiff to make “a bare statistical showing of disproportionate
impact on a racial minority”; rather, “Section 2 plaintiffs must show a
causal connection between the challenged voting practice and [a]
prohibited discriminatory result.” Salt River, 109 F.3d at 595 (second
emphasis added) (quoting Ortiz, 28 F.3d at 312); see also Fairley v.
Hattiesburg, 584 F.3d 660, 669 (5th Cir. 2009) (“[T]he plaintiffs bear the
burden of proof in a VRA case, and any lack of record evidence on VRA
violations is attributed to them.”).
19
We likewise do not consider the nine factors set forth in Gingles,
478 U.S. at 36–37.
36 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

quotation marks omitted). Therefore, we hold that the district
court did not abuse its discretion in finding Feldman was
unlikely to succeed on her Voting Rights Act claim.

B

Feldman also contends that the district court erred in
concluding that her facial challenge to H.B. 2023 on
constitutional grounds was unlikely to succeed on the merits.
We first lay out the analytical framework for facial challenges
to voting laws under the Fourteenth and First Amendments,
and then consider Feldman’s challenges.20

1

The Constitution grants the States a “broad power to
prescribe the ‘Times, Places and Manner of holding Elections
for Senators and Representatives.’” Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 451 (2008)
(quoting U.S. Const., art. 1, § 4, cl. 1). This power under the
Elections Clause to regulate elections for federal offices “is
matched by state control over the election process for state
offices.” Id. (quoting Clingman v. Beaver, 544 U.S. 581, 586
(2005)). “Governments necessarily ‘must play an active role
in structuring elections,’” Pub. Integrity All., Inc. v. City of
Tucson, — F.3d —, No. 15-16142, 2016 WL 4578366, at *3
(9th Cir. Sept. 2, 2016) (en banc) (quoting Burdick v.

20
The dissent contends that “neither the plaintiffs nor the defendants
categorize the challenge to H.B. 2023 as a facial challenge.” Dissent at 63
n.3. However, “[t]he label is not what matters.” John Doe No. 1 v. Reed,
561 U.S. 186, 194 (2010). Because Feldman’s “claim and the relief that
would follow—an injunction” barring Arizona from implementing and
enforcing H.B. 2023—“reach beyond the particular circumstances of these
plaintiffs,” id., it is properly characterized as a facial challenge.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 37

Takushi, 504 U.S. 428, 433 (1992)), and “as a practical
matter, there must be a substantial regulation of elections if
they are to be fair and honest and if some sort of order, rather
than chaos, is to accompany the democratic processes,”
Storer v. Brown, 415 U.S. 724, 730 (1974).

However, when a state exercises its power and discharges
its obligation “[t]o achieve these necessary objectives,” the
resulting laws “inevitably affect[]—at least to some
degree—the individual’s right to vote and his right to
associate with others for political ends.” Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983). Therefore, the state’s
“power is not absolute, but is ‘subject to the limitation that
[it] may not be exercised in a way that violates . . . specific
provisions of the Constitution.’” Wash. State Grange,
552 U.S. at 451 (alterations in original) (quoting Williams,
393 U.S. at 29). While the Constitution does not expressly
guarantee the right to vote in state and federal elections, the
Fourteenth Amendment protects a citizen’s right “to
participate in elections on an equal basis with other citizens
in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336
(1972). That is, “once the franchise is granted to the
electorate, lines may not be drawn which are inconsistent
with the Equal Protection Clause of the Fourteenth
Amendment.” Harper v. Va. State Bd. of Elections, 383 U.S.
663, 665 (1966). Similarly, “[w]hile the freedom of
association is not explicitly set out in the [First]
Amendment,” Healy v. James, 408 U.S. 169, 181 (1972), “the
Court has recognized a right to associate for the purpose of
engaging in those activities protected by the First Amendment
. . . as an indispensable means of preserving other individual
liberties,” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).
This right includes the ability “to associate . . . for the
advancement of common political goals and ideas,” Timmons
38 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997), and
“the ability of citizens to band together in promoting among
the electorate candidates who espouse their political views,”
Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000).
The Supreme Court has long recognized that “some forms of
‘symbolic speech’ [are] deserving of First Amendment
protection.” Rumsfeld v. Forum for Acad. & Institutional
Rights, Inc., 547 U.S. 47, 65 (2006). However, First
Amendment protection extends “only to conduct that is
inherently expressive.” Id. at 66. Conduct is inherently
expressive if it “is intended to be communicative and . . . in
context, would reasonably be understood by the viewer to be
communicative.” Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 294 (1984). For instance, burning the
American flag, Texas v. Johnson, 491 U.S. 397, 406 (1989),
and wearing an unauthorized military medal, United States v.
Swisher, 811 F.3d 299, 314 (9th Cir. 2016) (en banc), are
expressive conduct within the scope of the First Amendment.

The Supreme Court has explained that constitutional
challenges to election laws “cannot be resolved by any
‘litmus-paper test’ that will separate valid from invalid
restrictions.” Anderson, 460 U.S. at 789. Rather, “a more
flexible standard applies.” Burdick, 504 U.S. at 434. “A
court considering a challenge to a state election law must
weigh [1] ‘the character and magnitude of the asserted injury
to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate’ against
[2] ‘the precise interests put forward by the State as
justifications for the burden imposed by its rule,’ taking into
consideration [3] ‘the extent to which those interests make it
necessary to burden the plaintiff’s rights.’” Id. (quoting
Anderson, 460 U.S. at 789). This framework is generally
referred to as the Anderson/Burdick balancing test. In
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 39

applying this test, we: (1) identify and determine the
magnitude of the burden imposed on voters by the election
law; (2) identify the State’s justifications for the law; and
(3) weigh the burden against the State’s justifications. The
severity of the burden that an election law imposes “is a
factual question on which the plaintiff bears the burden of
proof.” Democratic Party of Haw. v. Nago, 833 F.3d 1119,
1122–24 (9th Cir. 2016) (citing Cal. Democratic Party,
530 U.S. 567); Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th
Cir. 2007) (noting that whether an election law imposes a
severe burden is an “intensely factual inquiry”).

“[T]he severity of the burden the election law imposes on
the plaintiff’s rights dictates the level of scrutiny applied by
the court.” Ariz. Libertarian Party v. Reagan, 798 F.3d 723,
729 (9th Cir. 2015) (quoting Nader v. Cronin, 620 F.3d 1214,
1217 (9th Cir. 2010) (per curiam)). “This is a sliding scale
test”: when the burden imposed is severe, not only the “more
compelling the state’s interest must be,” Ariz. Green Party v.
Reagan, — F.3d —, No. 14-15976, 2016 WL 5335037, at *4
(9th Cir. Sept. 23, 2016), but the regulation also “must be
‘narrowly drawn to advance a state interest of compelling
importance,’” Burdick, 504 U.S. at 434 (quoting Norman v.
Reed, 502 U.S. 279, 289 (1992)).

By contrast, “when a state election law provision imposes
only ‘reasonable, nondiscriminatory restrictions’ upon the
First and Fourteenth Amendment rights of voters, ‘the State’s
important regulatory interests are generally sufficient to
justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at
788) ; see also Ariz. Green Party, 2016 WL 5335037, at *4
(“[A] state may justify election regulations imposing a lesser
burden by demonstrating the state has important regulatory
interests.” (quoting Ariz. Libertarian Party, 798 F.3d at
40 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

729–30)). While Burdick does not call for rational basis
review, Pub. Integrity All., 2016 WL 4578366, at *4, it
likewise specifically declined to require that all voting
regulations be narrowly tailored and subjected to strict
scrutiny, see Burdick, 504 U.S. at 433. Rather, Burdick held
that when a statute imposes only a limited burden, the
“‘precise interests’ advanced by the State” alone may be
“sufficient to defeat [a plaintiff’s] facial challenge,”
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203
(2008) (controlling opinion of Stevens, J.) (quoting Burdick,
504 U.S. at 434). See also Pub. Integrity All., 2016 WL
4578366, at *6 (upholding a municipal election law, even
though it was aimed at furthering the same interests as other
municipal ordinances, because it might have marginal impact
beyond that provided by other laws).

Finally, the Supreme Court has warned that facial
challenges “are best when infrequent,” Sabri v. United States,
541 U.S. 600, 608 (2004), and “are disfavored for several
reasons” in the election law context in particular, Wash. State
Grange, 552 U.S. at 450. For instance, Arizona “has had no
opportunity to implement [H.B. 2023], and its courts have
had no occasion to construe the law in the context of actual
disputes arising from the electoral context, or to accord the
law a limiting construction to avoid constitutional questions.”
Id. “Claims of facial invalidity often rest on speculation,”
and “raise the risk of ‘premature interpretation of statutes on
the basis of factually barebones records.’” Id. (quoting Sabri,
541 U.S. at 609). When faced with underdeveloped
“evidence regarding the practical consequences of
[H.B. 2023], we find ourselves in the position of Lady
Justice: blindfolded and stuck holding empty scales.” Ariz.
Green Party, 2016 WL 5335037, at *6 (quoting Ariz.
Libertarian Party, 798 F.3d at 736 (McKeown, J.,
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 41

concurring)). Accordingly, plaintiffs asserting a facial
challenge “bear a heavy burden of persuasion,” the magnitude
of which the Supreme Court has reminded us “to give
appropriate weight.” Crawford, 553 U.S. at 200.

2

We now turn to Feldman’s Fourteenth Amendment claim.
Feldman claims that the district court made a number of
errors in determining that she was unlikely to prevail on the
merits of her claim that H.B. 2023 imposes an undue burden
on Arizona voters that is not outweighed by the State’s
asserted interests.

Feldman first argues that the district court erred in its
application of the Anderson/Burdick framework. Under this
framework, a district court must first consider the burden
posed by H.B. 2023. Burdick, 504 U.S. at 434. In
considering this burden, we must take care to avoid the “sheer
speculation” that often accompanies the assessment of
burdens when considering facial challenges. Wash. State
Grange, 552 U.S. at 454; see also Chicanos Por La Causa,
Inc. v. Napolitano, 558 F.3d 856, 866 (9th Cir. 2008) (“In any
event, a speculative, hypothetical possibility does not provide
an adequate basis to sustain a facial challenge.”).

Here, the district court did not clearly err in finding that
H.B. 2023 did not “significantly increase the usual burdens of
voting.” As an initial matter, H.B. 2023 on its face imposes
less of a burden than the challenged law did in Crawford.
Crawford considered the impact of Indiana’s voter-ID law,
which required voters who lacked photo ID to sustain “the
inconvenience of making a trip to the [state Bureau of Motor
Vehicles], gathering the required documents, and posing for
42 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

a photograph” to obtain the requisite identification. 553 U.S.
at 198. In the alternative, a voter who could not or did not
want to obtain a photo ID could submit a provisional ballot
and “travel to the circuit court clerk’s office within 10 days
to execute the required affidavit” accompanying the
provisional ballot. Id. at 199. The Court found that the law
imposed “only a limited burden on voters’ rights.” Id. at 203
(quoting Burdick, 504 U.S. at 439); see id. at 209 (Scalia, J.,
concurring in the judgment).

Crawford’s finding of a limited burden compels a similar
conclusion here. While the Indiana photo ID law imposed an
affirmative requirement that voters possess photo ID in order
to vote, H.B. 2023 limited only one of several methods of
voting that Arizona law otherwise makes available: only
third-party ballot collectors who do not qualify under the
statute are precluded from delivering ballots. The district
court’s conclusion that the limitation of one alternative for
ballot collection does not “represent a significant increase
over the usual burdens of voting” is not clearly erroneous.
Crawford, 553 U.S. at 198; see Ohio Democratic Party, 2016
WL 4437605, at *6 (rejecting a challenge to Ohio’s
“withdrawal of the convenience of same-day registration” and
holding that the Constitution does not “require all states to
maximize voting convenience”).21

21
The dissent argues that because “80% of the electorate uses early
absentee voting,” it “has transcended convenience and has become instead
a practical necessity.” Dissent at 62. In doing so, the dissent elides the
distinction between early absentee voting in general and early absentee
voting through third-party ballot collection, the only practice restricted by
H.B. 2023. Feldman did not provide “concrete evidence,” Crawford,
553 U.S. at 201, of the number of voters who rely on this practice.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 43

Further, any burden imposed by H.B. 2023 is mitigated by
the availability of alternative means of voting. The lead
opinion in Crawford held that the burden imposed by
Indiana’s voter-ID law was “mitigated by the fact that, if
eligible, voters without photo identification may cast
provisional ballots,” even though doing so required a voter to
make two trips: the first to vote and the second to execute the
required affidavit. 553 U.S. at 199. Here, H.B. 2023 could
at most require that a voter make that first trip—to vote in the
first instance. Because making two trips does not represent
a burden “over the usual burdens of voting” in Crawford, id.
at 198, the district court could reasonably determine that the
single trip required here does not represent such a burden,
either. Although Feldman contends that “thousands” of
Arizona voters rely on third-party ballot collection in order to
cast their early ballots,” the record does not support her
additional claim that without ballot collection by third parties
disqualified by H.B. 2023, many Arizona voters “would not
have been able to vote in prior elections.”

Feldman also argues that the district court erred in failing
to consider the burdens imposed on specific groups of voters
for whom H.B. 2023 poses a more serious challenge. We
disagree, because the evidence in the record was insufficient
for such an analysis. While a court may consider a law’s
impact on subgroups, there must be sufficient evidence to
enable a court “to quantify the burden imposed on the
subgroup.” Pub. Integrity All., 2016 WL 4578366, at *3 n.2
(citing Crawford, 553 U.S. at 199–203; id. at 212–17 (Souter,
J., dissenting)); see also Ne. Ohio Coal. for the Homeless v.
Husted, — F.3d —, Nos. 16-3603, 16-3691, 2016 WL
4761326, at *11–12 (6th Cir. Sept. 13, 2016) (holding that
Crawford may permit “weighing the ‘special burden’ faced
by ‘a small number of voters’” when there is “quantifiable
44 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

evidence from which an arbiter could gauge the frequency
with which this narrow class of voters has been or will
become disenfranchised,” but that in the absence of such
evidence, a court should “consider the burden that the
provisions place on all . . . voters.” (quoting Crawford,
553 U.S. at 200)), reh’g en banc denied, — F.3d —, 2016
WL 5939925 (6th Cir. Oct. 6, 2016). In Crawford, the Court
acknowledged that the photo ID requirement placed “a
somewhat heavier burden . . . on a limited number of
persons,” but did not consider this burden because it was “not
possible to quantify either the magnitude of the burden on this
narrow class of voters or the portion of the burden imposed
on them that is fully justified.” 553 U.S. at 199–200.
Accordingly, the Court instead considered “the statute’s
broad application to all . . . voters.” Id. at 202–03 (quoting
Burdick, 504 U.S. at 439). Here, the record includes broad
assertions regarding the number of ballots previously
collected, but does not include sufficient “concrete evidence”
of “the number of registered voters” within specific groups or
evidence that permits weighing of the burden on these voters,
such as whether H.B. 2023 would merely inconvenience these
voters or preclude them from voting. Id. at 200–01. Given
the paucity of evidence regarding these key issues, the district
court did not err in declining to focus on the burden on
specific groups. See id. at 201–02. We conclude that the
district court did not clearly err in identifying and assessing
the burden imposed by H.B. 2023.

Because the district court did not clearly err in its
determination of the burden imposed by H.B. 2023 on the
right to vote, we proceed to the second step of the
Anderson/Burdick framework and consider Arizona’s
interests. Feldman does not dispute that Arizona’s interest in
preventing absentee-voting fraud and maintaining public
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 45

confidence in elections are “relevant and legitimate state
interests,” Crawford, 553 U.S. at 191, nor could she. “A
State indisputably has a compelling interest in preserving the
integrity of its election process.” Purcell, 549 U.S. at 4
(quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S.
214, 231 (1989)). “While the most effective method of
preventing election fraud may well be debatable, the
propriety of doing so is perfectly clear.” Crawford, 553 U.S.
at 196. Similarly, “public confidence in the integrity of the
electoral process has independent significance, because it
encourages citizen participation in the democratic process.”
Id. at 197. And as the district court correctly recognized,
absentee voting may be particularly susceptible to fraud, or at
least perceptions of it. See Crawford, 553 U.S. at 225
(Souter, J., dissenting); Griffin v. Roupas, 385 F.3d 1128,
1131 (7th Cir. 2004); see also United States v. Townsley,
843 F.2d 1070 (8th Cir. 1988). The district court did not err
in crediting Arizona’s important interest in preventing fraud
even in the absence of evidence that voter fraud had been a
significant problem in the past. In Crawford, the Court noted
that “[t]he record contains no evidence of any such fraud
actually occurring,” but nonetheless concluded that “not only
is the risk of voter fraud real but . . . it could affect the
outcome of a close election.” 553 U.S. at 194–96; see also
Ohio Democratic Party, 2016 WL 4437605, at *9; Frank,
768 F.3d at 749–50. Courts recognize that legislatures need
not restrict themselves to a reactive role: legislatures are
“permitted to respond to potential deficiencies in the electoral
process with foresight rather than reactively.” Munro v.
Socialist Workers Party, 479 U.S. 189, 195–96 (1986).

Feldman also contends that the district court made several
legal errors in assessing Arizona’s interests and in weighing
them against the burden on voters. First, Feldman argues that
46 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

the district court erred in holding that “laws that do not
significantly increase the usual burdens of voting do not raise
substantial constitutional concerns.” We disagree. It is
axiomatic that under a balancing test such as
Anderson/Burdick’s, less weight on one side of the scale
allows that scale to be more easily tipped in the other
direction. “[W]hen a state election law provision imposes
only ‘reasonable, nondiscriminatory restrictions’ upon the
First and Fourteenth Amendment rights of voters, ‘the State’s
important regulatory interests are generally sufficient to
justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting
Anderson, 460 U.S. at 788).

Second, Feldman argues that the district court failed to
consider the means-end fit between Arizona’s interests in
preventing absentee-voting fraud and eliminating the
perception of fraud on the one hand and the burdens imposed
on voters on the other hand. Relying on a vacated Sixth
Circuit opinion, see Ohio State Conference of the NAACP v.
Husted, 768 F.3d 524 (6th Cir. 2014), vacated, No. 14-3877,
2014 WL 10384647 (6th Cir. Oct. 1, 2014), Feldman argues
that Arizona was required to “explain why the particular
restriction imposed is actually necessary,” id. at 545. Again,
we disagree. The lead opinion in Crawford held that a
limited burden on voters’ rights imposed by the challenged
law was outweighed by two “unquestionably relevant”
interests offered by the state, without considering the fit
between those interests and the voter-ID law. See 553 U.S.
at 203. And as several of our sister circuits have recognized,
it is “practically self-evidently true” that implementing a
measure designed to prevent voter fraud would instill public
confidence. Ohio Democratic Party, 2016 WL 4437605, at
*9 (citing Crawford, 553 U.S. at 197); see Frank, 768 F.3d at
750 (noting that Crawford took “as almost self-evidently
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 47

true” the relationship between a measure taken to prevent
voter fraud and promoting voter confidence). By asserting its
interest in preventing election fraud and promoting public
confidence in elections, essentially the same interests as in
Crawford, Arizona bore its burden of establishing “important
regulatory interests” sufficient to justify the minimal burden
imposed by H.B. 2023. Accordingly, the district court could
reasonably conclude that Arizona’s means—restricting third-
party ballot collection—matched the desired ends of
preventing voter fraud and promoting voter confidence in the
electoral system.22

For similar reasons, we reject Feldman’s argument that
the district court erred in not considering whether Arizona’s
“goals could have been achieved through less burdensome
means.” Neither the Supreme Court nor we have required a
state to prove there is no less restrictive alternative when the
burden imposed is minimal. Burdick expressly declined to
require that restrictions imposing minimal burdens on voters’
rights be narrowly tailored. See 504 U.S. at 433. Consistent
with Burdick, we upheld in Public Integrity Alliance an

22
The dissent argues that “the state’s justification for the law was
weak” because it “could not identify a single example of voter fraud
caused by ballot collection.” Dissent at 62. But the record does contain
evidence of improprieties, such as ballot collectors impersonating
elections officials. Moreover, Arizona’s interest is not simply in
preventing fraud, but also in promoting public confidence in the electoral
system, and the record contains evidence from which the district court
could properly conclude, as Feldman’s expert conceded, that absentee
voting is particularly conducive to fraud. “[O]ccasional examples” of
fraud—as documented in the Arizona Republic article cited by the
dissent—“demonstrate that . . . the risk of voter fraud [is] real,” Crawford,
553 U.S. at 195–96. Courts, wisely, do not require “that a State’s political
system sustain some level of damage” before allowing “the legislature [to]
take corrective action.” Munro, 479 U.S. at 195.
48 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

election restriction (ward-based primary elections) that
furthered the interest of “ensuring local representation by and
geographic diversity among elected officials” by ensuring
that “the candidates nominated in a given ward actually have
the support of a majority of their party’s voters in that ward,”
even though other less-restrictive means such as candidate-
residency requirements could achieve the same broader
purpose. 2016 WL 4578366, at *5. Similarly, in Arizona
Green Party, we rejected the argument that the state must
“adopt a system that is the most efficient possible” such that
later deadlines could be set, in light of the “de minimis
burden” imposed by the existing deadlines. 2016 WL
5335037, at *7. As the district court found, H.B. 2023
establishes a chain-of-custody for absentee ballots that
furthers Arizona’s stated interests of reducing fraud and
promoting public confidence, even though other, less
restrictive, laws may achieve the same broader purpose.

In sum, we conclude that the district court did not clearly
err in finding that H.B. 2023 imposed a minimal burden on
voters’ Fourteenth Amendment right to vote, in finding that
Arizona asserted sufficiently weighty interests justifying the
limitation, and in ultimately concluding that Feldman failed
to establish that she was likely to succeed on the merits of her
Fourteenth Amendment challenge.

3

We next consider Feldman’s First Amendment claim.
According to Feldman, the district court undervalued the
expressive significance of ballot collection when it concluded
that she was unlikely to succeed on the merits of her First
Amendment freedom of association claim. Feldman contends
that through ballot collection, individuals and organizations
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 49

convey their support for the democratic process and for
particular candidates and political parties. For example,
declarant Ian Danley stated that his coalition, One Arizona,
helps its “voters ensure that their voices are heard on Election
Day” by “collecting and personally delivering their signed,
sealed early ballots.” Similarly, declarant Rebekah Friend
stated that under H.B. 2023, the Arizona State Federation of
Labor will have difficulty fulfilling its goal of encouraging its
members to register and vote because it “will no longer be
able to help its members or other voters vote by taking their
signed, sealed early ballots to the Recorder’s office.”
Therefore, Feldman argues, “ballot collectors convey that
voting is important not only with their words but with their
deeds.”

We first consider whether ballot collection is expressive
conduct protected under the First Amendment. See Clark,
468 U.S. at 293 n.5 (“[I]t is the obligation of the person
desiring to engage in assertedly expressive conduct to
demonstrate that the First Amendment even applies. To hold
otherwise would be to create a rule that all conduct is
presumptively expressive.”). We agree with the district court
that it is not. Even if ballot collectors intend to communicate
that voting is important, “[w]e cannot accept the view that an
apparently limitless variety of conduct can be labeled
‘speech’ whenever the person engaging in the conduct intends
thereby to express an idea.” United States v. O’Brien,
391 U.S. 367, 376 (1968). Unlike burning an American flag
or wearing a military medal, ballot collection does not convey
a message that “would reasonably be understood by the
viewer to be communicative.” Swisher, 811 F.3d at 311
(quoting Clark, 468 U.S. at 294). Rather, a viewer would
reasonably understand ballot collection to be a means of
facilitating voting, not a means of communicating a message.
50 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

See, e.g., Voting for Am., Inc. v. Steen, 732 F.3d 382, 392 (5th
Cir. 2013) (concluding that collecting and delivering voter
registration applications is “merely conduct” because “there
is nothing inherently expressive” about it).

While political organizations undoubtedly engage in
protected activities, ballot collection does not acquire First
Amendment protection merely because it is carried out along
with protected activities and speech. See Forum for Acad. &
Institutional Rights, Inc., 547 U.S. at 66 (concluding that
“combining speech and conduct” is not enough to create
expressive conduct); Voting for Am., 732 F.3d at 389 (“The
Court also has repeatedly explained that non-expressive
conduct does not acquire First Amendment protection
whenever it is combined with another activity that involves
protected speech.”). Because H.B. 2023 regulates only third-
party ballot collection, which is non-expressive conduct, the
district court did not err in concluding that H.B. 2023 does
not implicate the First Amendment.

Moreover, even if we assumed that H.B. 2023 implicates
the First Amendment, we agree with the district court’s
conclusion that Arizona’s regulatory interests in preventing
voter fraud justifies the minimal burden that H.B. 2023
imposes on associational rights under the Anderson/Burdick
test. Looking first at the burden imposed by H.B. 2023, the
district court did not clearly err in finding that H.B. 2023 does
not impose a severe burden. H.B. 2023 does not prevent
individuals and organizations from encouraging others to
vote, educating voters, helping voters register, helping voters
complete their early ballots, providing transportation to
voting sites or mailboxes, or promoting political candidates
and parties. Ariz. Rev. Stat. § 16-1005; see, e.g., Timmons,
520 U.S. at 361 (concluding that the burden a Minnesota law
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 51

imposed on a political party’s First and Fourteenth
Amendment rights was not severe because the party remained
“free to endorse whom it likes, to ally itself with others, to
nominate candidates for office, and to spread its message to
all who will listen”). H.B. 2023 does not prevent individuals
and organizations from associating “for the advancement of
common political goals and ideas,” Timmons, 520 U.S. at
357, or from “[banding] together in promoting among the
electorate candidates who espouse their political views,” Cal.
Democratic Party, 530 U.S. at 574.

Turning to Arizona’s regulatory interests, we conclude for
the reasons discussed supra at 44–45 that the district court did
not clearly err in finding that Arizona has important
regulatory interests in preventing voter fraud and maintaining
the integrity of the electoral process. Accordingly, the district
court could properly conclude that Arizona’s important
regulatory interests are sufficient to justify any minimal
burden on associational rights, as discussed supra at 46–47.

In sum, we conclude that ballot collection is not
expressive conduct implicating the First Amendment, but
even if it were, Arizona has an important regulatory interest
justifying the minimal burden that H.B. 2023 imposes on
freedom of association. The district court did not err in
concluding that the Feldman was unlikely to succeed on the
merits of her First Amendment claim.

IV

Having concluded that the district court did not err in
holding that Feldman failed to demonstrate a likelihood of
success on the merits, we briefly consider the remaining
equitable factors for issuing a preliminary injunction.
52 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

Because it is not likely that Feldman will suffer a violation of
her statutory or constitutional rights, she likely has “failed to
establish that irreparable harm will flow from a failure to
preliminarily enjoin defendants’ actions.” Hale v. Dep’t of
Energy, 806 F.2d 910, 918 (9th Cir. 1986).

Even if Feldman had raised serious questions as to the
merits of her claims, and also shown a likelihood of
irreparable harm, Winter, 555 U.S. at 22, relief would not be
warranted because Feldman has not shown that “the balance
of hardships tips sharply” in her favor or that an injunction is
in the public interest. All. for the Wild Rockies, 632 F.3d at
1135. This case is not one in which “qualified voters might
be turned away from the polls.” Purcell, 549 U.S. at 4.
Rather, it is one in which voters are precluded from giving
their ballots to third-party ballot collectors and organizations
must use an alternative means of mobilizing their voters. Cf.
Lair, 697 F.3d at 1215 (the existence of “other options for
engaging in political speech” militated in favor of staying an
injunction against enforcement of a state law restricting one
avenue of speech). Indeed, the district court found from the
evidence that many voters who entrust their ballots to
collectors do so merely for convenience, and we cannot
disturb this finding. See Hinkson, 585 F.3d at 1262 (noting
our deference to findings that are plausible and supported by
the record). The record does not establish that the
organizational plaintiffs’ need, in light of H.B. 2023, to
reallocate resources as part of a reconfigured get-out-the-vote
effort constitutes a substantial hardship.

The impact of H.B. 2023 on prospective voters, which the
district court found largely to be inconvenience, does not
outweigh the hardship on Arizona, which has a compelling
interest in the enforcement of its duly enacted laws. See Nken
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 53

v. Holder, 556 U.S. 418, 436 (2009) (recognizing the public
interest in the enforcement of the law); Veasey v. Perry,
769 F.3d at 895 (“When a statute is enjoined, the State
necessarily suffers the irreparable harm of denying the public
interest in the enforcement of its laws.”). As a general
matter, Arizona’s regulation of the early voting process
advances its interest in preserving ballot secrecy and
preventing “undue influence, fraud, ballot tampering, and
voter intimidation.” Miller, 179 Ariz. at 180. The interest in
preventing fraud is “compelling,” Purcell, 549 U.S. at 4, and
for Arizona no less than for Feldman, there are no “do over”
elections; “the State cannot run the election over again” with
the tools H.B. 2023 provides to combat possible fraud.
Veasey v. Perry, 769 F.3d at 896. On this record, then, the
balance cannot be said to tip “sharply” in Feldman’s favor.
All. for the Wild Rockies, 632 F.3d at 1135.

We turn finally to the public interest, an inquiry that
“primarily addresses impact on non-parties,” Bernhardt v.
Los Angeles County, 339 F.3d 920, 931 (9th Cir. 2003), but
that closely tracks Arizona’s own interests, see Nken,
556 U.S. at 435. Like Arizona itself, its citizens “have a deep
interest in fair elections.” Lair, 697 F.3d at 1215. Even in
the absence of actual fraud, the prospect of early voting fraud
may undermine public confidence in the results of the
election. Purcell, 549 U.S. at 4. At the very least, H.B. 2023
assists in exorcizing the specter of illegitimacy that may hang
over the electoral process in the minds of some citizens.
“Given the deep public interest in honest and fair elections”
as well as the “numerous available options” for voters to
submit ballots in Arizona consistent with H.B. 2023, Lair,
697 F.3d at 1215, removing H.B. 2023 from the State’s
regulatory toolbox in the middle of the voting period may
54 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

well do more harm to the perceived integrity and legitimacy
of the election than good.

Feldman is therefore not only unlikely to prevail on the
merits, but, as the district court concluded, her interest in
avoiding possible irreparable harm does not outweigh
Arizona’s and the public’s mutual interests in the
enforcement of H.B. 2023 pending final resolution of this
case. In reaching this conclusion, we heed the Supreme
Court’s admonition to consider the harms “specific to
election cases,” Purcell, 549 U.S. at 4, attendant on enjoining
the enforcement of a state’s voting law while it is currently in
play, and just weeks before an election.

AFFIRMED.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 55

THOMAS, Chief Judge, dissenting:

Arizona has criminalized one of the most popular and
effective methods by which minority voters cast their ballots.
Because this law violates the Constitution and the Voting
Rights Act, I must respectfully dissent.

I

Like most states, Arizona allows voters to cast a ballot on
election day at a polling place, or to cast an early absentee
vote, either in person or by mail. A.R.S. § 16-541. Early
voting has become increasingly popular in Arizona, as
evidenced by the fact that 81% of ballots cast in the last
Presidential election were cast by early voting, a 12%
increase from the 2012 election. An important reason for the
increase in early voting is that Arizona has substantially
reduced the number of polling places, resulting in
extraordinarily long lines, with voters waiting many hours to
cast their ballots. In one urban area, there is one voting center
for nearly 70,000 registered voters. In some precincts in
Maricopa County, voters waited for four hours to cast their
ballots in the Presidential Preference Primary election earlier
this year. In other precincts, the wait was up to six hours.
Compounding the problem is that, in Maricopa County in
particular, polling places change with each election, and the
County is using a different polling place system for the
general election than it did in the Presidential Preference
election earlier this year.

As the use of early voting has skyrocketed in Arizona,
voters have increasingly used friends, organizations, political
parties, and campaign workers to transmit their ballots. Some
efforts are typical of “get-out-the-vote” campaigns by
56 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

partisan groups; others are targeted to provide a service to
those who cannot get to the polls. Because of geographic and
other impediments to voting, voting by ballot collection has
become a critical means for minority voters to cast their
ballots. A substantial number of rural minority voters live in
areas without easy access to mail service. In urban areas,
many minority voters are socioeconomically disadvantaged,
meaning that they may lack reliable mail service and have to
rely on public transportation to get to polling places.

Nonetheless, Arizona enacted the law at issue, House Bill
2023, codified at A.R.S. § 16-1005 (H)–(I), which imposes
felony criminal sanctions for non-household members or
caregivers who collect early ballots from others. Plaintiffs
filed this lawsuit challenging the law under the Voting Rights
Act of 1965 and the First and Fourteenth Amendments to the
United States Constitution. The district court denied the
plaintiffs’ motion for a preliminary injunction, and this
interlocutory appeal followed.

We review the denial of a preliminary injunction for
abuse of discretion. All. for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1131 (9th Cir. 2011). A district court abuses
its discretion if its analysis is premised on an inaccurate view
of the law. Pom Wonderful LLC v. Hubbard, 775 F.3d 1118,
1123 (9th Cir. 2014). In such instances, we review de novo
the legal premises underlying the preliminary injunction. Id.1

1
The majority believes the district court’s findings of fact are
reviewed by this Court for clear error because the district court has
superior fact-finding capabilities. Maj. Op. at 25. The majority also
believes a district court’s answer to the ultimate question–whether there
was a § 2 violation–is a finding of fact entitled to deference. The majority
cites Gonzales for that proposition. However, the district court did not
conduct any evidentiary hearings to resolve disputed factual issues, and
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 57

II

The district court erred in its analysis of the plaintiffs’
Fourteenth Amendment claims. First, it erroneously
employed a rational basis review standard, when the
appropriate standard was a “balancing and means-end fit
analysis.” Pub. Integrity All. v. City of Tucson, 2016 WL
4578366, at *3 (9th Cir. 2016) (en banc). As Public Integrity
Alliance recognized, the Supreme Court established the
appropriate standard of review for laws regulating the right to
vote in Burdick v. Takushi, 504 U.S. 428 (1992). As we
explained in Public Integrity Alliance:

Under Burdick’s balancing and means-end fit
framework, strict scrutiny is appropriate when
First or Fourteenth Amendment rights “are
subjected to ‘severe’ restrictions.” Id. (quoting
Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct.
698, 116 L.Ed.2d 711 (1992)). “But when a
state election law provision imposes only
‘reasonable, nondiscriminatory restrictions’
upon the First and Fourteenth Amendment

most of the record is undisputed, and the parties’ submissions were by
affidavit. Furthermore, the district court here did not determine whether
there was a § 2 violation because, unlike in Gonzales, we are not yet at the
merits stage of the inquiry. This is an appeal of a denial of a preliminary
injunction, so we are reviewing the district court’s determination that the
plaintiffs are unlikely to succeed on the merits of their claims. In my view,
the plaintiffs are likely to succeed on the merits and the district court
reached the opposite conclusion because it made errors of law. Therefore,
review is de novo as to those questions. Pom Wonderful LLC, 775 F.3d
at 1123. Most of the district court’s opinion involves a mixed question of
law and fact. In election cases, as with other appeals, we review such
decisions de novo. United States v. Blaine County, Montana, 363 F.3d
897, 909 (9th Cir. 2004).
58 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

rights of voters, ‘the State’s important
regulatory interests are generally sufficient to
justify’ the restrictions.” Id. (quoting
Anderson, 460 U.S. at 788, 103 S.Ct. 1564).

Pub. Integrity All., 2016 WL 4578366, at *3.

However, rather than reviewing H. B. 2023 under a
balancing and means-end fit analysis, the district court
conducted a rational basis review, committing legal error.2

The second, and more important legal error, was that the
district court misapplied the analysis required by Burdick and
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). Under
Anderson-Burdick, the court must weigh the nature and
magnitude of the burden imposed by the law against the

2
The majority concludes that because Arizona’s regulatory interests
are sufficient to justify the “minimal burden” imposed by H.B. 2023, “the
district court was not required to conduct a means-end fit analysis here.”
Maj. Op. at 46–47. That is an erroneous interpretation of Supreme Court
and our precedent. “The Supreme Court delineated the appropriate
standard of review for laws regulating the right to vote in Burdick v.
Takushi[:]” it is a “balancing and means-end fit framework.” Pub.
Integrity All., 2016 WL 4578366, at *3. A court may not avoid
application of a means-end fit framework in favor of rational basis review
simply by concluding that the state’s regulatory interests justify the voting
burden imposed. Moreover, Burdick tells us that in weighing “the
character and magnitude of the asserted injury” against the “precise
interests put forward by the State as justifications for the burden imposed
by its rule,” we must take into consideration “the extent to which those
interests make it necessary to burden the plaintiff’s rights.” 504 U.S. at
434. In this case, the State’s asserted interest does not make necessary the
substantial burden on the voting rights of minorities. Simply put, the
State’s end does not fit the means employed.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 59

state’s interest and justification for it. Nader v. Brewer,
531 F.3d 1028, 1034 (9th Cir. 2008).

The burden of the law on Arizona minority voters is
substantial and occurs in both urban and rural areas of the
state. The uncontradicted evidence presented to the district
court showed that a substantial number of minority voters
used ballot collection as their means of voting. As Maricopa
Board of Supervisors Steve Gallardo testified: “ballot
collectors are used in large part by Latino and Native
American groups and [ballot collecting] has come to be
critical in enabling voters in those communities to exercise
their fundamental right to vote.”

The record demonstrated that, in many rural areas with a
high proportion of minority voters, home mail delivery was
not available, and it was extremely difficult to travel to a post
office. No one contested the fact that the rural communities
of Somerton and San Luis, which are comprised of 95.9% and
98.7% Hispanic voters, respectively, were without home mail
delivery and reliable transportation. As the representative for
that district testified, “[b]ecause many of these voters are
elderly and have mobility challenges, it is a common practice
in this area to have one neighbor pick up and drop off mail
for others on their street as a neighborly service.” The
representative noted that there is only one post office, which
is located across a highway crowded with cars waiting to
cross the border, and is virtually inaccessible by foot.

Another example of the impact of the law on minority
voters is the Tohono O’odham Indian Nation. The Tohono
O’odham reservation constitutes over 2.8 million acres in the
Sonoran desert. It is an area larger than Rhode Island and
Delaware, and approximates the size of Connecticut. It has
60 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

about 14,000 registered voters. It does not have home mail
delivery. It has one post office, which is over 40 miles away
from many residents. The evidence in this case shows that
restrictions on ballot collection affect the Tohono O’odham
tribe significantly. No one contested the fact that the
members of the Tohono O’odham Indian Nation have limited
access to a postal service and no home mail delivery.

Similarly, no one disputed that members of the Cocopah
Indian Tribe do not have home mail delivery or easy access
to a post office. The Cocopah Reservation is located along
the lower Colorado River, south of Yuma, Arizona. The
Cocopah Reservation comprises approximately 6,500 acres,
with approximately 1,000 tribal members who live and work
on or near the Reservation.

As to urban areas, record evidence demonstrated that the
burden of the law affected minority voters the most because
of socioeconomic factors. Minority voters in urban areas
were more likely to be economically disadvantaged. The
record showed that many minority urban voters lived in
places with insecure mail delivery; that many minority urban
voters were dependent upon public transportation, which
made election day in-person voting difficult; that many
minority voters worked several jobs, making it difficult to
take time off work to vote in person; and that many infirm
minority voters did not have access to caregivers or family
who could transmit ballots.

Martin Quezada, State Senator for Arizona’s Twenty-
Ninth Senate District testified that:

I represent approximately 213,000
constituents, nearly 80% of which are ethnic
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 61

minorities. In particular, Hispanic citizens
comprise 67% of the population of my
district, the highest percentage of any district
in the state of Arizona. My district is a
working-class community, and many of my
constituents depend on public transportation.
[ . . . ] Many of my constituents were severely
burdened by the long lines and lack of polling
locations in the 2016 presidential preference
election. My entire district only had one vote
center, in Maryvale, to service the nearly
70,000 registered voters . . . .

The President of a nonprofit organization comprised of
Latino citizens and community leaders testified that many
minorities required assistance in making sure that they were
following the proper voting procedure, and in low income
areas they were concerned about the security of their
mailboxes.

Further complicating voting in Arizona’s urban areas is
that there are not only few places to vote, but that the polling
locations change frequently. Indeed, because the City of
Phoenix elections are run independently by the City, a voter
might have to go to two different polling places to cast ballots
on election day. According to the Executive Director of a
nonprofit organization working primarily in low-income
African-American and Latino neighborhoods, this confusion
significantly burdened those communities because many
minorities had difficulty navigating the voting process,
especially those Spanish-speaking voters who were not also
fluent in English. The record also showed that election
administrators were prone to make errors with Spanish-
language materials. Those voters encounter significant
62 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

hurdles at polling places. Thus, the opportunity for early
voting is especially important for those citizens.

The district court and the State dismiss the burdens
imposed on minority voters seeking to vote early as attacks
on a process that provides only a “more convenient” means
of voting. However, when 80% of the electorate uses early
absentee voting as the method by which they cast their
ballots, the method has transcended convenience and has
become instead a practical necessity. Thus, when severe
burdens are placed on this form of voting, it has a significant
impact on elections and the right to vote.

Against this burden, the state’s justification for the law
was weak. The state identified its interest as preventing voter
fraud. However, the sponsors of the legislation could not
identify a single example of voter fraud caused by ballot
collection. Not one. Nor is there a single example in the
record of this case. The primary proponent of the legislation
admitted there were no examples of such fraud, but that the
legislation was based on the speculative theory that fraud
could occur. A study by the Arizona Republic found that, out
of millions of ballots cast from 2005 to 2013, there were only
34 cases of fraud prosecution. All involved voting by felons
or non-citizens. None involved any allegation of fraud in
ballot collection. And none of the cases resulted in a
conviction. A study by the National Republican Lawyers
Association, which was dedicated to finding voter fraud and
investigated evidence of potential fraud between 2000 and
2011, uncovered no example of fraud resulting from the
collection and delivery of early ballots in Arizona. A follow-
up analysis through May of 2015 failed to uncover any
examples of ballot collection fraud. The plaintiffs produced
numerous affidavits that attested that no one associated with
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 63

ballot collection had ever witnessed any voter fraud. Further,
the record indicated that there are effective processes in place
to handle any ballot that exhibits any signs that tampering has
occurred. The Director of Elections for Maricopa County, the
most populated county in Arizona, with a population of four
times the next most populated county, testified at the
legislative hearings that the County was well equipped to deal
with voter fraud. Under state election procedure, voters can
check the status of their ballot at any time. In short, the
specter of voter fraud by ballot collection is much like the
vaunted opening of Al Capone’s vault: there is simply
nothing there.

Thus, when one balances the serious burdens placed on
minorities by the law against the extremely weak justification
offered by the state, one can only conclude under the
Anderson-Burdick analysis that the plaintiffs have established
a likelihood of success on the merits of their Fourteenth
Amendment claim.3 Based on the mostly uncontroverted

3
The majority asserts that plaintiffs in this case are bringing a facial
challenge to H.B. 2023 and they therefore bear a “heavy burden of
persuasion” because such challenges “raise the risk of premature
interpretation of statutes.” Maj. Op. at 40–41 (internal quotations
omitted). It is worth noting that neither the plaintiffs nor the defendants
categorize the challenge to H.B. 2023 as a facial challenge; only the
majority opinion does so. It is also worth noting that securing a court’s
interpretation of the effects of H.B. 2023 before the law is enforced is the
point of seeking a preliminary injunction. But for my part, I think this is
a distinction without a difference because “[t]he underlying constitutional
standard [in an as applied challenge] . . . is no different th[a]n in a facial
challenge.” Legal Aid Servs. of Or. v. Legal Servs. Corp., 608 F.3d 1084,
1096 (9th Cir. 2010) (quoting Velazquez v. Legal Servs. Corp., 462 F.3d
219, 228 (2d Cir. 2006)). “Facial and as-applied challenges differ in the
extent to which the invalidity of a statute need be demonstrated (facial, in
all applications; as-applied, in a personal application). Invariant, however,
64 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

record, the district court erred in misapplying Anderson-
Burdick.4

III

The district court also erred in denying the motion for a
preliminary injunction based on the Voting Rights Act
claims. The Voting Rights Act of 1965 “was designed by
Congress to banish the blight of racial discrimination in
voting, which has infected the electoral process in parts of our
country for nearly a century.” State of S.C. v. Katzenbach,
383 U.S. 301, 308 (1966) abrogated by Shelby Cty., Ala. v.
Holder, __ U.S. __, 133 S. Ct. 2612 (2013). The Act
“implemented Congress’ firm intention to rid the country of
racial discrimination in voting. It provided stringent new
remedies against those practices which have most frequently
denied citizens the right to vote on the basis of their race.”
Allen v. State Bd. of Elections, 393 U.S. 544, 548 (1969).

The central purpose of the Act was “[t]o enforce the
fifteenth amendment to the Constitution of the United States.”
Chisom v. Roemer, 501 U.S. 380, 383 (1991) (quoting Pub.L.
89–110, 79 Stat. 437, 42 U.S.C. § 1973 et seq.). The

is the substantive rule of law to be used. In other words, how one must
demonstrate the statute’s invalidity remains the same for both types of
challenges, namely, by showing that a specific rule of law, usually a
constitutional rule of law, invalidates the statute, whether in a personal
application or to all.” Velazquez, 462 F.3d at 228 (emphasis in original).
4
Plaintiffs assert an additional Constitutional claim under the First
Amendment. In my view, the district court erred in concluding that H. B.
2023 did not burden their First Amendment associational rights.
However, in my view, the district court did not abuse its discretion in
denying a preliminary injunction based on this independent claim.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 65

Fifteenth Amendment provides that “[t]he right of citizens of
the United States to vote shall not be denied or abridged by
the United States or by any State on account of race, color, or
previous condition of servitude.” U.S. Const. amend. XV,
§ 1.

At issue in this case is § 2 of the Act, which is “a
restatement of the Fifteenth Amendment.” Roemer, 501 U.S.
at 392. Section 2 provides, without limitation, that any voting
qualification that denies citizens the right to vote in a
discriminatory manner violates the Voting Rights Act.
42 U.S.C. § 1973; see also Allen, 393 U.S. at 566–67 (noting
that Congress intentionally chose the expansive language
“voting qualifications or prerequisite to voting, or standard,
practice, or procedure” for § 2 so as to be “all-inclusive of
any kind of practice” that might be used by states to deny
citizens the right to vote (internal quotation marks omitted)).
As amended in 1982, § 2 makes “clear that certain practices
and procedures that result in the denial or abridgment of the
right to vote are forbidden even though the absence of proof
of discriminatory intent protects them from constitutional
challenge.” Roemer, 501 U.S. at 383–84.

To succeed on a § 2 claim, a plaintiff must show (1) that
“the challenged standard, practice, or procedure must impose
a discriminatory burden on members of a protected class,
meaning that members of the protected class have less
opportunity than other members of the electorate to
participate in the political process and to elect representatives
of their choice” and (2) “that burden must in part be caused
by or linked to social and historical conditions that have or
currently produce discrimination against members of the
protected class.” League of Women Voters of N.C. v. North
Carolina, 769 F.3d 224, 240 (4th Cir. 2014) (internal
66 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

quotations omitted); see also Veasey v. Abbott, 830 F.3d 216,
244 (5th Cir. 2016).

The district court made a number of legal errors in its
analysis of the § 2 claims, warranting reversal.

A

The district court erred in holding, as a matter of law, that
§ 2 requires proof of the disparate impact of a law by
“quantitative or statistical evidence comparing the proportion
of minority versus white voters who rely on others to collect
their early ballots.” As the State concedes, there is no case
law supporting this requirement; the district court relied only
on cases it thought “strongly suggested” it.

Although quantitative or statistical measures of
comparing minority and white voting patterns certainly may
provide important analytic evidence, the district court erred
in concluding that they were the exclusive means of proof.
Indeed, the district court’s conclusion is belied by the words
of the Voting Rights Act itself, which provides that a
violation of § 2 is “based on the totality of the
circumstances.” 52 U.S.C. § 10301(b) (emphasis added).
The statute requires evidence that members of the affected
minority class “have less opportunity than other members of
the electorate to participate in the political process and to
elect representatives of their choice.” Id. (emphasis added).
The statutory criterion is incompatible with the district
court’s restriction of proof to quantitative denial of actual
minority voting compared with white voting. The relevant
question is whether the challenged practice, viewed in the
totality of the circumstances, places a disproportionate
burden on the opportunities of minorities to vote. Veasy,
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 67

830 F.3d at 244–45; League of Women Voters, 769 F.3d at
240. Even when analyzing the second part of the § 2 test,
which does require causality, statistical analyses are not the
exclusive method of showing a violation.5 Veasy, 830 F.3d
244. Indeed, the Supreme Court has eschewed that approach
in favor of consideration of various factors. Gingles,
478 U.S. at 44–45. Rather than narrowly interpreting the
Voting Rights Act, the Supreme Court has emphasized its
“broad remedial purpose of rid[ding] the country of racial
discrimination in voting” and has explained that it provided
“the broadest possible scope in combating racial
discrimination.” Roemer, 501 U.S. at 403. The district
court’s mechanical formulation is also at odds with the
“totality of the circumstances” approach we underscored in
Gonzales v. Arizona, 677 F.3d 383, 406 (9th Cir. 2012). The
district court’s restriction constitutes legal error.

Even if we leave aside the irreconcilable conflict between
the district court’s proposed rule and the requirements of the

5
The majority opines that “[w]hile § 2 itself does not require
quantitative evidence, past cases suggest that such evidence is typically
necessary to establish a disproportionate burden.” Maj. Op. at 28. The
majority also notes that plaintiffs’ briefs rely on vote dilution cases but not
vote denial cases in arguing that statistical evidence is not required to
establish a § 2 violation. Maj. Op. at 29 fn. 14. I perceive no reason why
the type of § 2 case on which plaintiffs rely is of consequence to their
argument about what § 2 itself requires. Likely plaintiffs could not rely
on a vote denial case for the stated proposition because of the practical
reality that in a vote denial case, quantitative evidence of the effect of a
rule on voting behavior is only available after an election has occurred, at
which point the remedial purpose of the Voting Rights Act is no longer
served. Plaintiffs in vote dilution cases, in contrast, can often gather and
analyze quantitative data before an election. See, e.g., Thornburg v.
Gingles, 478 U.S. 30 (1986).
68 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

governing statute, the district’s approach is still fatally
flawed.

First, quantitative measurement of the effect of a rule on
the voting behavior of different demographic populations
must necessarily occur after the election. One cannot
statistically test the real world effect of a rule in the abstract;
it can only be measured by actual voting data. In other
words, imposition of the district court’s proposed rule would
mean that there could never be a successful pre-election
challenge of the burdens placed on minority voting
opportunity because no data will have been generated or
collected. The analysis could only occur after the harm had
been inflicted. That result cannot be squared with the broad
remedial purposes of the Voting Rights Act. The Fifth
Circuit, in rejecting an approach similar to the district court’s,
acknowledged this problem, observing that requiring such
proof would “present[] problems for pre-election challenges
. . . when no such data is yet available.” Veasey, 830 F.3d at
260.

Second, the relevant data is not available in Arizona. The
State concedes that it does not collect the necessary data, and
asserts that it should not bear that burden in the absence of a
law that requires it to do so. The State suggests that plaintiffs
should use data from those organizations who collect ballots.
Of course, that action would now be a felony. But leaving
that aside, there would be no practical way for the plaintiffs
to collect comparative data by that method because it is
highly unlikely they could force competing organizational
groups to collect and supply the data. And such a method
would not likely yield true comparative results. At best, it
would show that white voters and minority voters both have
used ballot collection as a means for casting their ballots. No
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 69

one disputes that, nor does anyone seriously dispute the fact
that minority citizens are especially dependent on ballot
collection has a means of voting. Further, even if past data
were available, it still would not answer the district court’s
query because the data gathered would be pre-rule, and
therefore not relevant as a means of assessing the rule’s
impact.

Third, the district court acknowledged the difficulty of
obtaining the data because “election and other public records
often do not include racial or ethnic data,” and noted that
“[t]here is no getting around this problem.” Nonetheless, the
court held that the statute still required a threshold statistical
showing, even though collecting such evidence was likely
impossible. That was not the intent of the Voting Rights Act,
and it is just such a circumstance that requires assessment of
the “totality of the circumstances.”

Fourth, in its examination of the plaintiffs’ evidence, the
district court erred in its comparative analysis. It faulted the
plaintiffs for not showing comparative data from other rural
white-centric areas. But that is not the examination required
by the Voting Rights Act. Section 2 examines whether
“members of the protected class have less opportunity than
other members of the electorate to participate in the political
process and to elect representatives of their choice.” Veasey,
830 F.3d at 305; League of Women Voters of N.C., 769 F.3d
at 240 (emphasis added). It does not test opportunity against
“other members of the electorate” who are “similarly
situated.” Thus, contrary to the district court’s analysis, the
comparison is not with similarly situated white groups, but
rather with the voting population as a whole. If the district
court’s assumption were correct, then literacy and poll tax
statutes would be constitutional because they placed the
70 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

burdens on illiterate and poor whites and blacks equally.
Instead, the Voting Rights Act focuses on the burdens
disproportionately place on minorities in comparison with the
general voting population. Native American voters living on
reservations have different burdens as to transportation and
mail access than urban white voters. A state may not evade
the requirements of § 2 by arguing that it equally applies to a
subset of white voters constituting a minuscule percentage of
the white vote, when the overall effect is the suppression
minority voting.

And even if we were to take the district court’s analysis
at face value, it fails in consideration of the evidence in this
case. The district court’s conclusion is at odds with the
evidence showing the law disproportionately burdens
minorities. I have previously described the situation faced by
the Tohono O’odham Nation, situated on 2.8 million acres,
with limited access to a post office and no home mail
delivery. Everyone concedes that there is no white
population analogue. There are no white reservations in
Arizona. There is no comparably sized rural area that
encompasses a white-majority population. The record
evidence was plain and uncontroverted: H.B. 2023 places a
disproportionate burden on the voting opportunities of
members of the Tohono O’odham tribe in comparison with
the population of white voters.

The evidence provided by the plaintiffs showed a similar
pattern in urban areas. Minority voters encountered
significant burdens in exercising their right to vote. The
reduced number of polling places meant that voters had to
wait hours in line to cast ballots. Low income voters had
difficulty getting to the polls because of their dependence on
public transportation. Voters who were not fluent in English
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 71

had difficulty determining where to vote. Statistical evidence
is not needed to see that without ballot collecting, these voters
will have less opportunity than other members of the
electorate to participate in the political process.

In sum, the district court committed legal error by
requiring the plaintiffs to show proof of the disparate impact
of the law by “quantitative or statistical evidence comparing
the proportion of minority versus white voters who rely on
others to collect their early ballots.” That formulation is at
odds with the governing statute, which requires analysis by
“totality of the circumstances” of whether members of the
affected minority class “have less opportunity than other
members of the electorate to participate in the political
process and to elect representatives of their choice.”
52 U.S.C. § 10301(b).

B

The district court also erred as a matter of law in its
assessment of the plaintiffs’ burden of proof. “[T]he burden
of proof at the preliminary injunction phase tracks the burden
of proof at trial . . . .” Thalheimer v. City of San Diego,
645 F.3d 1109, 1116 (9th Cir. 2011). In a voting rights case,
the plaintiff bears the burden of proof at trial and must show
a violation by a preponderance of the evidence. Bartlett v.
Strickland, 556 U.S. 1, 19–20 (2009). Thus, the parties
seeking a preliminary injunction in this case must show they
are likely to prevail on the merits; if the plaintiffs satisfy that
burden, then the opposing parties bear the burden of
rejoinder. Thalheimer, 645 F.3d at 1116.

Here, the district court rejected plaintiffs’ tendered
evidence because it was not “compelling.” At the preliminary
72 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

injunction stage, the plaintiff is not required to present
“compelling” evidence, but only to establish a likelihood of
success by a preponderance of the evidence. The district
court also rejected the tendered evidence as “anecdotal,” but
the Supreme Court has considered and credited just such
evidence. At the preliminary injunction stage, plaintiffs were
obligated to show a likelihood of success in showing that
“members of the protected class have less opportunity than
other members of the electorate to participate in the political
process and to elect representatives of their choice.”

Much of the evidence tendered by the plaintiffs as to this
burden was not controverted. As I have noted, no one
contested the fact that the rural communities of Somerton and
San Luis, which are comprised of 95.9% and 98.7% Hispanic
voters, respectively, were without home mail delivery and
reliable transportation. No one contested the fact that the
members of the Tohono O’odham Indian Nation do not have
home mail delivery. No one disputed that members of the
Cocopah Indian Nation do not have home mail delivery. The
plaintiffs submitted voluminous affidavits showing the
burden that the restriction on ballot collection would impose
on minorities. The State did not contest the affidavits, but
simply dismissed the evidence as “anecdotal.” Thus, much of
the evidence tendered by the plaintiffs as to the
disproportionate burden on minority voters was either
completely undisputed or uncontested.

However, once the plaintiffs had established the burden
on minority voters, the district court did not place the burden
of rejoinder on the State. Rather, it categorically rejected
evidence based on personal knowledge as “anecdotal,” and
held that the plaintiffs were required to show that rural white
voters were not similarly burdened. In other words, once the
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 73

plaintiffs had established the burden on minority voters, the
district court imposed a higher standard of proof, rather than
shifting the burden of rejoinder to the State. The record
provides no information as to rural white voters. The district
court viewed that as fatal to the plaintiffs’ claims. In fact, it
meant that the plaintiffs had satisfied their threshold
requirements, and the State had failed to rejoin. The district
court erred in holding the plaintiffs to a higher evidentiary
burden.

C

The district court did not reach the second prong of the
§ 2 analysis, namely, whether the burden was in part caused
by or linked to social and historical conditions that have or
currently produce discrimination against members of the
protected class. Nevertheless, the plaintiffs established a
likelihood of success on the second prong.

As to the second part of the analysis, the Supreme Court
has identified several factors to be taken into consideration,
consistent with the legislative history of the Voting Rights
Act, namely:

(1) the extent of any history of official
discrimination in the state or political
subdivision that touched the right of the
members of the minority group to register, to
vote, or otherwise to participate in the
democratic process;

(2) the extent to which voting in the elections
of the state or political subdivision is racially
polarized;
74 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

(3) the extent to which the state or political
subdivision has used unusually large election
districts, majority vote requirements, anti-
single shot provisions, or other voting
practices or procedures that may enhance the
opportunity for discrimination against the
minority group;

(4) if there is a candidate slating process,
whether the members of the minority group
have been denied access to that process;

(5) the extent to which members of the
minority group in the state or political
subdivision bear the effects of discrimination
in such areas as education, employment and
health, which hinder their ability to participate
effectively in the political process;

(6) whether political campaigns have been
characterized by overt or subtle racial appeals;
and

(7) the extent to which members of the
minority group have been elected to public
office in the jurisdiction.

Gingles, 478 U.S. at 37. In addition, the Court added that in
some cases, there was probative value in inquiring “whether
there is a significant lack of responsiveness on the part of
elected officials to the particularized needs of the members of
the minority group” and “whether the policy underlying the
state or political subdivision’s use of such voting
qualification, prerequisite to voting, or standard, practice or
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 75

procedure is tenuous.” Id. (citing S. Rep., at 28–29,
U.S.Code Cong. & Admin. News 1982, pp. 206–207).

As to the first factor, the extent of any history of official
discrimination in the state or political subdivision that
touched the right of the members of the minority group to
register, to vote, or otherwise to participate in the democratic
process, Arizona has had a long history of imposing burdens
on minority voters. In 1912, shortly after gaining statehood,
Arizona imposed a literacy test for voting. In Cochise and
Pima Counties, the denial of the right to vote meant that
nearly half the precincts lacked enough voters to justify
holding primary elections in 1912. From 1912 to the early
1960s, election registrars applied the literacy test to reduce
the ability of African Americans, Native Americans, and
Hispanics to register to vote. In an action filed against
Arizona to enforce the Voting Rights Act, the United States
Justice Department estimated that 73,000 people could not
vote because of the existence of the literacy test.

The passage of the Voting Rights Act in 1965 caused the
suspension of the literacy test in Arizona, but the statute
remained in effect until it was repealed in 1972, after
Congress banned its use in 1970 through an amendment to the
Voting Rights Act. Arizona subsequently unsuccessfully
challenged the Congressional ban on literacy tests. Oregon
v. Mitchell, 400 U.S. 112, 118 (1970). In Mitchell, the Court
noted that, in Arizona, only two counties out of eight with
Hispanic populations in excess of 15% showed voter
registration equal to the state-wide average. Id. at 132. In the
1960s, there were a number of initiatives to discourage
minority voting in Arizona, such as “Operation Eagle Eye.”
Under Operation Eagle Eye, minority voters were challenged
at the pools on a variety of pretexts, with the goal of
76 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

preventing minority voting or slowing down the process to
create long lines at the polls and discourage voting.

Native Americans in Arizona especially suffered from
voting restrictions. Although Native Americans were U.S.
citizens, the Arizona Supreme Court held in 1928 that they
could not vote because they were under federal guardianship.
Porter v. Hall, 271 P. 411, 419 (Ariz. 1928). Even after that
ban was overruled in 1948 in Harrison v. Laveen, 196 P.2d
456 (Ariz. 1948), Native Americans faced significant
obstacles to voting. See generally, Patty Ferguson-Bohnee,
The History of Indian Voting Rights in Arizona: Overcoming
Decades of Voter Suppression, 47 Ariz. St. L. J. 1099, 1112
(2015).

Because of its long history of imposing burdens on
minority voting, Arizona became one of nine states subject to
the pre-clearance requirements of the Voting Rights Act after
it was amended in 1975 to protect language minorities.
40 Fed. Reg. 43746. Under the pre-clearance provision,
Arizona was required to obtain the approval of the United
States Department of Justice before implementing any law
affecting the voting rights and representations of minorities.
Since 1982, the Department of Justice has vetoed four
statewide redistricting plans proposed by Arizona that
appeared to discriminate against minorities. When Arizona
was subject to the pre-clearance requirements of § 5, a bill
precluding or criminalizing ballot collection passed the
Arizona legislature, but was ultimately repealed due to
concerns about Justice Department approval. In 2013, the
Arizona legislature passed a measure banning partisan ballot
collection, the violation of which was a misdemeanor. It was
repealed after its repeal was placed on the ballot by
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 77

referendum. The plaintiffs established a likelihood of success
as to the first factor.

As to the second factor, the extent to which voting in the
elections of the state or political subdivision is racially
polarized, Arizona has had a history of racially polarized
voting. The plaintiffs provided expert testimony detailing the
history of polarized voting. Statistical analysis showed the
sharp polarization between white and non-white voters.

For the reasons described in the discussion of factor one,
the plaintiffs demonstrated a likelihood of success as to factor
three, namely, the extent to which the state or political
subdivision has used unusually large election districts,
majority vote requirements, anti-single shot provisions, or
other voting practices or procedures that may enhance the
opportunity for discrimination against the minority group.

Because the voting access issues affect the right to vote
for a candidate, the fourth factor concerning the candidate
slating process is not relevant.

The fifth factor, the extent to which members of the
minority group in the state or political subdivision bear the
effects of discrimination in such areas as education,
employment and health, which hinder their ability to
participate effectively in the political process, falls decisively
in favor of the plaintiffs. The plaintiffs tendered significant
evidence showing that Arizona minorities suffered in
education and employment opportunities, with disparate
poverty rates, depressed wages, higher levels of
unemployment, lower educational attainment, less access to
transportation, residential transiency, and poorer health.
78 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE

The plaintiffs also provided substantial evidence as to the
sixth factor, namely, whether political campaigns have been
characterized by overt or subtle racial appeals.

Finally, the plaintiffs provided evidence supporting the
seventh Gingles factor, namely, the extent to which members
of the minority group have been elected to public office in the
jurisdiction. As of January 2016, Hispanics constituted over
30% of the population, but held only 19% of the seats in the
Arizona legislature. African-Americans made up 4.7% of the
population, but held 1% of the legislative seats. Native
Americans fared slightly better, constituting 5.3% of the
population and holding 4.4% of the legislative seats.

But the Gingles factors are not the end of the story. We
are obligated to look to the “totality of the circumstances.”
52 U.S.C. § 10301(b). In this election, in-person voting
opportunities are significantly hindered by lack of polling
places and significant changes in polling places, all of which
have caused extraordinarily long lines for voting in person, up
to six hours in some locations. This hindrance to in-person
voting falls most heavily on minorities. So, the cited
“opportunities” for alternate voting are illusory. H. B. 2023
has now imposed additional significant burdens on minorities
as to their ability to cast their ballots early through the
popular means of ballot collection. The totality of the
circumstances of this election, coupled with the historic
discrimination in Arizona’s electoral politics are sufficient to
satisfy the second § 2 requirement. In sum, the plaintiffs
established a likelihood of success in proving the Gingles
factors at stage two of the § 2 analysis.
 FELDMAN V. ARIZ. SEC’Y OF STATE’S OFFICE 79

D

The plaintiffs established a likelihood of success on the
§ 2 Voting Rights Act claim. They established that the
criminalization of ballot collection meant that minority voters
had less opportunity than other members of the electorate to
elect representatives of their choice, and that the burden in
part was caused by or linked to social and historical
conditions that have or currently produce discrimination
against minorities.

IV

The district court should have granted the motion for a
preliminary injunction. The district court made a number of
legal errors. The plaintiffs established that the anti-ballot-
collection law significantly burdens the voting rights of
minorities, particularly Hispanic and Native American voters.
The State’s justification of preventing voter fraud was not,
and is not, supportable. One of the most popular and
effective methods of minority voting is now a crime. H. B.
2023 violates the Constitution and the Voting Rights Act.

There are many burdens and challenges faced in Arizona
by Native Americans, Hispanics, African-Americans, the
poor, and the infirm who do not have caregivers or family.
With H.B. 2023, Arizona has added another:
disenfranchisement.

I respectfully dissent.
 FILED
NOV 04 2016

MOLLY C. DWYER, CLERK
Feldman v. Arizona Sec’y of State, No. 16-16698 U.S. COURT OF APPEALS

O’SCANNLAIN, Circuit Judge, with whom CLIFTON, BYBEE, and

CALLAHAN, Circuit Judges, join, and with whom N.R. SMITH, Circuit Judge,

joins as to Parts I, II, and III, dissenting from the order enjoining the State of

Arizona:

The court misinterprets (and ultimately sidesteps) Purcell v. Gonzalez, 549

U.S. 1 (2006), to interfere with a duly established election procedure while voting

is currently taking place, contrary to the Supreme Court’s command not to do so. I

thus respectfully dissent from this order enjoining the state of Arizona from

continuing to follow its own laws during an ongoing election. And let there be no

mistake: despite the majority’s pretenses to the contrary, the order granting the

injunction is a ruling on the merits, and one based on an unnecessarily hasty review

and an unsubstantiated statutory and constitutional analysis.1

1
The order alternately discusses whether to grant an “injunction” pending
appeal, Order at 2, and a “stay” pending appeal, id. at 2, 8. Stays and injunctions
are two different things: a stay postpones the judgment or order of a court; an
injunction, of course, commands or prohibits action by a third party. See, e.g., Fed.
R. App. P. 8 (Stay or Injunction Pending Appeal); “Injunction,” Black's Law
Dictionary (10th ed. 2014); “Stay,” Black’s Law Dictionary (10th ed. 2014).
Because before today no court has ordered Arizona not to enforce H.B. 2023, the
majority presumably means that today it issues an injunction against the State from
(continued...)
 I

Some background: On September 23, 2016, the district court denied

plaintiffs’ motion for a preliminary injunction blocking Arizona from

implementing certain provisions in Arizona House Bill 2023 (H.B. 2023). These

provisions limit the collection of voters’ early ballots to family members,

household members, certain government officials, and caregivers. Plaintiffs

appealed. A Ninth Circuit motions panel unanimously denied plaintiffs’ emergency

motion for an injunction pending appeal on October 11. That same panel sua

sponte amended its October 11 ruling to expedite the appeal on October 14. A

merits panel received briefing, heard oral argument, and issued an opinion on

October 28, affirming the district court and denying the request for a preliminary

injunction by a two-to-one majority. The case was called en banc the same day the

opinion was issued. Eschewing our normal en banc schedule, memo exchange was

compressed into five days, as opposed to our customary thirty-five. Now, just two

days after the en banc call succeeded, and just four days before Election Day, the

majority overturns the district court, a motions panel, and a separate merits panel to

reach its desired result.

1
(...continued)
enforcing a particular statute.

2
 II

The Supreme Court counseled against just this type of last-minute

interference in Purcell. That case also involved our court’s issuing a last-minute

injunction against the enforcement of a contested Arizona election law. 549 U.S. at

2–4. The Supreme Court, on October 20, 2006, vacated that injunction, which had

been implemented by a Ninth Circuit motions panel on October 5—more than four

weeks before the election. Id. at 2–3. In doing so, the Court stressed the

“imminence of the election” and the need to give the case adequate time to resolve

factual disputes. Id. at 5–6. Despite Purcell’s direct impact on this case, the

majority confines that decision much too narrowly, and in its strained attempt to

distinguish Purcell, disregards how this eleventh-hour injunction will impact the

current election and many elections to come.

At first, it seemed that we might respect Supreme Court precedent this time

around, when first the motions panel, and later the three-judge merits panel, wisely

determined that no injunction should issue at this stage. Yet, after a third bite at the

apple, here we are again—voiding Arizona election law, this time while voting is

3
already underway2 and only four days before Election Day. In doing so we depart

from our own precedent, see, e.g., Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir.

2012) (staying a district court’s injunction “given the imminent nature of the

election”), and myriad decisions of our sister circuits, see, e.g., Crookston v.

Johnson, No. 16-2490, 2016 WL 6311623, at *2 (6th Cir. Oct. 28, 2016) (“Call it

what you will — laches, the Purcell principle, or common sense — the idea is that

courts will not disrupt imminent elections absent a powerful reason . . . .”); Veasey

v. Perry, 769 F.3d 890, 895 (5th Cir. 2014) (staying an injunction “in light of the

importance of maintaining the status quo on the eve of an election”); Colon-

Marrero v. Conty-Perez, 703 F.3d 134, 139 n.9 (1st Cir. 2012) (noting that “even

where plaintiff has demonstrated a likelihood of success, issuing an injunction on

the eve of an election is an extraordinary remedy with risks of its own”). We also

disregard not only Purcell, but other Supreme Court authority disfavoring last-

minute changes to election rules. See, e.g., North Carolina v. League of Women

Voters of N.C., 135 S. Ct. 6 (2014) (granting stay to prevent interference with

election procedures roughly one month before election).3 In all these cases, “the

2
Early voting in Arizona began more than three weeks ago, on October 12.
3
Likewise, the Court stayed a permanent injunction imposed by a district
court and affirmed by the Sixth Circuit on September 24, 2014, which would have
(continued...)

4
common thread [was] clearly that the decision of the Court of Appeals would

change the rules of the election too soon before the election date.” Veasey, 769

F.3d at 895.

The majority recognizes the need to address Purcell and its progeny. But the

majority’s strained attempt to distinguish those cases is unconvincing—its

reasoning either misrepresents Purcell or is irrelevant to the issues at hand. And it

misses the main point of Purcell: the closer to an election we get, the more

unwarranted is court intrusion into the status quo of election law.

A

First, the majority makes the incomprehensible argument that its injunction

“does not affect the state’s election processes or machinery.” Order at 3. The

majority cites no law, fact, or source of any kind in support of this argument, and it

is dubious on its face. Of course, H.B. 2023 directly regulates the state’s election

processes or machinery: it governs the collection of ballots, which obviously is

3
(...continued)
required Ohio to add early in-person voting hours. See Husted v. Ohio State
Conference of N.A.A.C.P., 135 S. Ct. 42 (2014), rev’g sub nom. Ohio State
Conference of N.A.A.C.P. v. Husted, 768 F.3d 524 (6th Cir. 2014). And, in Frank
v. Walker, the Court vacated the Seventh Circuit’s September 26, 2014 stay of a
preliminary injunction enjoining application of Wisconsin’s voter ID law, which
had been put in place by the district court in April 2014. See 135 S. Ct. 7 (2014),
rev’g in part, Frank v. Walker, 769 F.3d 494 (7th Cir. 2014), rev’g, 768 F.3d 744
(E.D. Wis.).

5
integral to how an election is conducted. But under the majority’s Orwellian logic,

regulations affecting get-out-the-vote operations are somehow not regulations of

the “electoral process.” (What are they, then, one might ask? The majority does not

tell.) Apparently, the majority believes that only measures that affect the validity of

a vote itself (or a voter herself) affect such process. Other courts, in ruling on

similar regulations, have rejected the majority’s view, and widely held that

regulations of many aspects of an election beyond the validity of a vote affect the

election process. See, e.g., Lair, 697 F.3d at 1214 (staying injunction of certain

campaign finance laws); see also Harris v. Graddick, 593 F. Supp. 128, 135 (M.D.

Ala. 1984) (observing that even the racial composition of polling officials could

affect the election process).

Tellingly, the majority barely addresses whether enjoining H.B. 2023 will

create confusion and disruption in the final days of the election—a key factor in the

Purcell decision. 549 U.S. at 4–5 (“Court orders affecting elections, especially

conflicting orders, can themselves result in voter confusion and consequent

incentive to remain away from the polls.”). And, based on this record, how could

it? Factual development in the record is sparse. The majority says its injunction

will be less disruptive than the Purcell injunction, but offers not a shred of

empirical proof for this proposition. Order at 3–5. At this point, it appears that no

6
one knows just how much confusion this court risks by issuing this injunction,

after weeks of procedures suggested it would not.4 What we do know is that the

State has approximately four days to figure out and to implement whatever

response is necessary to accommodate our latest view of the case. If requiring such

action is inappropriate four weeks prior to Election Day, see Purcell, 549 U.S. at

3–4, it surely is in the waning days of voting. The Supreme Court could not have

been clearer: “[a]s an election draws closer, that risk [of disruption] will increase.”

Id. at 5.

B

The majority’s second argument—that this case is different because it

involves a law that imposes criminal penalties—manages to be both irrelevant and

incorrect. It is irrelevant because Purcell never says, or even indicates, that whether

a law imposes criminal penalties affects whether the status quo should be upset

right before an election. It is incorrect because our own circuit applied Purcell in a

case involving a law that affected the electoral process and imposed criminal

4
This lack of factual support is a recurring theme, and another reason this
court should wait until after the election to act. See Purcell, 549 U.S. at 6 (Stevens,
J., concurring) (“Allowing the election to proceed without enjoining the statutory
provisions at issue will provide the courts with a better record on which to judge
their constitutionality.”). This court should “take[] action[s] that will enhance the
likelihood that [important factual issues] will be resolved correctly on the basis of
historical facts rather than speculation.” Id.

7
penalties. See Lair, 697 F.3d at 1214 (staying an injunction that applied to

Montana campaign finance law enforced by criminal penalties).

C

Third, the majority misreads Purcell by inventing a supposed Purcell Court

concern that the federal judiciary was “disrupt[ing] long standing state procedures”

and then equating it with the majority’s desire to preserve the pre-H.B. 2023 status

quo. Order at 5. Nowhere in Purcell does the Court mention “long standing state

procedures.” Proposition 200, the voter identification law at issue in Purcell, had

been approved by Arizona voters in 2004 and was not precleared until May of

2005. 549 U.S. at 2. The 2006 election was the first federal election at which it

would go into effect. The voter identification law was relatively new, but, “[g]iven

the imminence of the election,” the Court overturned our injunction which would

have returned Arizona to a pre-Proposition 200 world, the majority's so-called

“status quo.” Id. at 5. Obviously, Purcell was actually concerned with changes to

the status quo that had occurred within weeks of an election.

And that status quo can be a law or an injunction that has been in place for

just a few months. See Frank, 135 S. Ct. at 7. In Frank, the Supreme Court vacated

the Seventh Circuit's September 26, 2014 stay of a preliminary injunction

enjoining application of Wisconsin's voter ID law, which had been put in place by

8
the district court in April 2014. By the time the Seventh Circuit issued its decision,

the injunction had become the new “status quo,” even the dissent had to concede

the “colorable basis for the Court's decision.” Id. at 7 (Alito, J., dissenting). The

dissent noted that given the “proximity of the election,” it was “particularly

troubling that absentee ballots [relying on the injunction] ha[d] been sent out

without any notation that proof of photo identification must be submitted.” Id.

D

Fourth, the argument that “unlike the circumstances in Purcell and other

cases, plaintiffs did not delay in bringing this action” continues the majority’s

pattern of inventing facts. Order at 5. Nowhere in Purcell does the Supreme Court

discuss the timing of the plaintiffs’ filing. Nowhere does it say that the plaintiffs

affected their chances of success by delaying their filing. Nowhere does it use this

factor in its analysis. Indeed, as recounted above, the Supreme Court is far more

focused on the date of court orders that upset the status quo in relation to the date

of the election. See, e.g., League of Women Voters, 135 S. Ct. at 6 (staying an

injunction ordered by the Fourth Circuit a month before the election despite the

fact that plaintiffs challenged the statute at issue a year prior to the election).

9
 E

Finally, perhaps betraying its real motivation, the majority bafflingly

suggests that our last-minute intervention is required now that the Supreme Court

struck down the federal preclearance mechanism in Shelby County v. Holder, 132

S. Ct. 2612, 2631 (2013). But, whatever the majority might think of that opinion,

Shelby County has absolutely no relevance to the Court’s decision in Purcell.

The majority is correct about one basic point: in discussing the procedural

history in Purcell, the Supreme Court mentioned that the regulation at issue had

been precleared. 549 U.S. at 2. But the Court did not suggest that preclearance was

in any way relevant to its decision. Despite the majority’s oblique citation to

Purcell, one will not find any support in that decision for its statement that

preclearance meant the law in Purcell was presumptively valid—or that any such

presumption mattered at all to the question before the Court. Quite to the contrary,

the Supreme Court explicitly cautioned that it was not addressing the merits of the

claim in Purcell. Id. at 5 (“We underscore that we express no opinion here on the

correct disposition, after full briefing and argument, of the appeals [from the

district court] . . . .”).

Even if the majority believes that courts should engage in a heightened

review of voting laws after Shelby County—and I stress the Supreme Court has

10
given us absolutely no reason to believe we should—that does not support the

notion that such review matters at this stage of litigation. Purcell is plainly about

the impact a court order will have on an upcoming (or in our case, ongoing)

election, not the merits of the constitutional claim underlying that order. Id. Pre-

clearance, Shelby County, and the merits of the challenge to H.B. 2023 are beside

the point. Four days before an election is not an appropriate time for a federal court

to tell a State how it must reconfigure its election process.

III

Unfortunately, though I believe the merits should not have been reached

until a more thorough review of the case could have been conducted—and ideally

more evidence could have been collected, including quantitative data—the

majority’s decision to consider and then to grant an injunction pending appeal

forces the issue. In doing so, and given the current record, the majority, by

adopting Chief Judge Thomas’s dissent, makes various errors in both its

constitutional and federal statutory analysis that further undermine its argument

that an injunction is necessary. Order at 2 (adopting the reasoning of Feldman v.

Arizona Sec’y of State, No. 16-16698, 2016 WL 6427146, at *21–31 (9th Cir. Oct.

28, 2016) (Thomas, C.J., dissenting)). This situation means we are forced to reach

11
the merits as well. See Order at 2 (citing Lopez v. Heckler, 713 F.2d 1432, 1435

(9th Cir. 1983)).

Unlike the majority, we are persuaded by the analysis of the vacated three-

judge panel majority opinion and the district court opinion. Feldman, 2016 WL

6427146, at *1–21; Feldman v. Arizona Sec’y of State, No. CV-16-01065-PHX-

DLR, 2016 WL 5341180 (D.C. Ariz. Sept. 23, 2016) [hereinafter Feldman (D.C.)].

A few key points, some contained in those opinions, are worth highlighting. One

error in the majority’s reasoning stands out the most—its failure even to pretend to

give any deference to the district court’s denial of exactly the same request. See

Purcell, 549 U.S. at 5 (concluding that the failure of “the Court of Appeals to give

deference to the discretion of the District Court . . . was error”).

A

The majority’s Fourteenth Amendment analysis falsely claims the district

court improperly conducted a “rational basis” review. Feldman, 2016 WL

6427146, at *21 (Thomas, C.J., dissenting). Yet, the district court never used the

phrase “rational basis,” instead it explicitly stated that Arizona “must show [] that

12
it[s law] serves important regulatory interests,” after it conducted the burden

analysis.5 Feldman (D.C.), 2016 WL 5341180, at *11.

The majority argues that H.B. 2023 imposes a “substantial burden” on

voting, but this cannot be reconciled with the fact six Justices in Crawford v.

Marion Cnty. Election Bd., 553 U.S. 181 (2008), found that Indiana’s voting ID

law imposed either a “a limited burden,” id. at 202 (Stevens., J., writing for three

justices), or a “minimal” one, id. at 204 (Scalia, J., writing for three justices). The

majority does not even try to argue that H.B. 2023 imposes more of a burden on

voters than the Indiana law, instead it just does not cite Crawford.

The majority argues that the “state’s justification for the law was weak.”

Feldman, 2016 WL 6427146, at *24 (Thomas, C.J., dissenting). This cannot be

reconciled with Crawford’s language that “[t]here is no question” that a state’s

interest in preventing voter fraud is an important interest. 553 U.S. at 194–197

(holding this even though there was no evidence in the record that the particular

type of voting fraud the law was trying to prevent has occurred). Arizona’s interest

in protecting public confidence in elections is also an established important

5
Rational basis review only requires the legislature to have some rational
reason for the law, even if it is not important and even if the judge, rather than the
legislature, proffers that reason. E.g., Williamson v. Lee Optical of Okla. Inc., 348
U.S. 483, 487–88 (1955).

13
interest. Id. at 197. Once again the majority “solves” this problem by pretending

that Crawford does not exist.

B

The majority’s Voting Rights Act of 1965 (VRA) Section 2 analysis is

equally shoddy. 52 U.S.C. § 10301. It concedes that no statistical or quantitative

evidence exists in the record. Feldman, 2016 WL 6427146, at *27 (Thomas, C.J.,

dissenting). It concedes that “the Voting Rights Act focuses on the burdens

disproportionately place [sic] on minorities in comparison with the general voting

population.” Id. at 27 (emphasis added). It concedes that “[t]he relevant question is

whether the challenged practice . . . places a disproportionate burden on the

opportunities of minorities to vote.” Id. at 26. It concedes the burden lies with the

plaintiffs and that “the parties seeking a preliminary injunction in this case must

show they are likely to prevail on the merits.” Id. at 28.

Yet, it then argues that the district court erred by asking plaintiffs to show

the burden on minority voters was greater than that of white voters. Id. at 28–29.

But the plaintiffs had the burden of showing disparate treatment. Instead of

acknowledging that the current record’s lack of facts showing a disparate impact is

fatal to this claim, the majority invents a burden-shifting requirement. Id. at 21–22.

It argues that “once the plaintiffs had established the burden on minority voters”

14
the district court erred by not “shifting the burden of rejoinder to the State.” Id. at

29. This burden-shifting requirement—which would require the state to prove a

negative (no disparity if minorities are burdened)—has no support in the law.

IV

Finally, the unusual procedural history leading up to this decision and the

contrived time pressure we placed ourselves under in rendering this decision

underscores exactly why courts refrain from intervening in elections at the last

minute unless they absolutely have to.6

After presumably fuller consideration than our own, a district court judge, a

three-judge motions panel, and a two-judge majority of a separate merits panel all

rejected Feldman’s attempt to have enforcement of H.B. 2023 enjoined for the

current election. Yet, with only three days of review (and no oral argument), a

majority of our hastily constructed en banc panel has reversed course, requiring

Arizona to change its voting procedures the weekend before Election Day. The

record presented in this appeal exceeds 3000 pages; the parties’ briefs (which now

total five, after additional en banc briefing) present complex and well-reasoned

arguments; and the alleged constitutional violations are serious. But our en banc

6
Sometimes we are forced to act under time pressure, such as death penalty
habeas review, but while the final orders may issue hours before execution, these
cases are usually the cumulation of years of carefully considered litigation.

15
panel has found it appropriate (indeed imperative) to resolve the matter in less time

than we might usually take to decide a motion to reschedule oral argument.

Despite the majority’s pretenses to having “given careful and thorough

consideration” to the issues presented in this case, Order at 7, one wonders how

much the obvious dangers inherent in our rushed and ad hoc process have infected

the decision in this case. Cf. Purcell, 127 S. Ct. at 6 (Stevens, J., concurring)

(“Given the importance of the constitutional issues, the Court wisely takes action

that will enhance the likelihood that they will be resolved correctly on the basis of

historical facts rather than speculation.”).

The circumstances of this case do not inspire confidence in the majority’s

order. First, the majority does not appear even to have resolved what to label the

relief it has determined must be handed down in this case.7 More concerning, and

as discussed above, the order fails seriously to grapple with controlling Supreme

Court precedent pertaining both to appropriateness of our action at this stage of

litigation and to the underlying merits of the issues in this case. The order also

wholly fails to explain why it is now necessary to overrule a unanimous order from

October 11—which was approved by one of the judges who now joins the

majority—denying an identical emergency motion in this same case. We are left

7
Supra note 1.

16
only to wonder why that decision, acceptable four weeks ago, is now the cause for

immediate correction.

Worse still is the precedent this hastily crafted decision will create. The

majority purports to delay ruling on the merits of the challenge to H.B.

2023—presumably so that this case can be carefully considered. Order at 8. But it

“essentially” adopts the reasoning of a twenty-nine page dissent from the original

three-judge panel opinion, Order at 2, which concludes that it is clear “this law

violates the Constitution and the Voting Rights Act.” Feldman, 2016 WL 6427146,

at *21 (Thomas, C.J., dissenting). If our court agrees with the essence of that

dissent, what is left to decide after oral argument? The majority’s framing of this

issue as just a “stay,” Order at 8, only obfuscates the fact that our en banc panel has

blocked Arizona’s voting law, declared it presumptively unconstitutional, and

overturned the status quo the weekend before voting ends, all without first taking

the time needed to gain a thorough mastery of the record, to hear oral argument

from the parties, or to write a considered opinion.

17
 As the majority is quick to remind us, the issues in this case are important.8

Those issues deserved more than seventy-two hours of consideration. This court’s

hasty rush to decide those issues on the basis of ad hoc procedure is regrettable. I

fear our action in this case will set a precedent that will harm not only the current

election in Arizona, but presumably many more down the line, whenever a State

enacts a voting regulation that more than half of the active judges on the Ninth

Circuit simply deem unwise.

I respectfully dissent.

8
Indeed, the majority strongly implies the issues are so important that they
need to be decided right away. But every voting rights case pits similar arguments
about the fundamental right to vote against arguments about a State’s need and
right to regulate its elections. See, e.g., Crawford, 553 U.S. at 191.
To accept the majority’s argument that the importance of this case compels
action leaves one wondering what change in election law would not qualify as
important. Cf. Clingman v. Beaver, 544 U.S. 581, 593 (2005) (“To deem ordinary
and widespread burdens [on voting] like these severe would subject virtually every
electoral regulation to strict scrutiny, hamper the ability of States to run efficient
and equitable elections, and compel federal courts to rewrite state electoral
codes.”). This “importance” exception would whittle Purcell down to nothing. As
Justice Stevens explained in Purcell, it is precisely because these issues are
important that we should not rush to decide them. See, 549 U.S. at 6 (Stevens, J.,
concurring).

18
 FILED
NOV 04 2016

MOLLY C. DWYER, CLERK
Feldman v. Arizona Secretary of State, No. 16-16698 U.S. COURT OF APPEALS

Bybee, Circuit Judge, with whom Circuit Judges O’Scannlain, Clifton, Callahan,
and N.R. Smith join, dissenting:

I join in full Judge O’Scannlain’s dissent. I write separately to emphasize

two brief points: First, Arizona’s restrictions on who may collect an early

ballot—a question very different from who may vote by early ballot—follows

closely the recommendation of the bipartisan Commission on Federal Election

Reform. Second, the Arizona early ballot law at issue here is a common provision,

and similar restrictions on the collection of early or absentee ballots may be found

on the books of some twenty-one states. Those provisions have been in effect for

decades, and they have been enforced. Unless the Voting Rights Act means that

identical provisions are permissible in some states and impermissible in other

states, our decision would invalidate many of those provisions, including

provisions in other states of the Ninth Circuit.

I

There is no constitutional or federal statutory right to vote by absentee

ballot. See McDonald v. Bd. of Election Comm’rs of Chic., 394 U.S. 802, 807–08

(1969) (“It is thus not the right to vote that is at stake here but a claimed right to

receive absentee ballots. . . . [T]he absentee statutes, which are designed to make
voting more available to some groups who cannot easily get to the polls, do not

themselves deny . . . the exercise of the franchise . . . .”); see also Crawford v.

Marion Cty. Election Bd., 553 U.S. 181, 209 (2008) (Scalia, J., concurring in the

judgment) (“That the State accommodates some voters by permitting (not

requiring) the casting of absentee or provisional ballots, is an indulgence—not a

constitutional imperative that falls short of what is required.”); Grifffin v. Roupas,

385 F.3d 1128, 1130 (7th Cir. 2004) (rejecting the claim that there is “a blanket

right of registered voters to vote by absentee ballot;” “it is obvious that a federal

court is not going to decree weekend voting, multi-day voting, all-mail voting or

Internet voting”).

Arizona’s restrictions on the collection and handling of absentee ballots are

neutral provisions designed to ensure the integrity of the voting process. Although

the majority claims that there is no evidence of “voter fraud caused by ballot

collection,” Maj. Op. at 2, (adopting Feldman v. Ariz. Sec’y of State, --- F.3d ---,

2016 WL 6427146 *24 (9th Cir. 2016) (Thomas, C.J., dissenting)), Arizona does

not have to wait until it possesses such evidence before it acts. It may be pro-

active, rather than reactionary. And the evidence for voter fraud in the handling of

absentee ballots is well known. In 2005, the bi-partisan Commission on Federal

2
Election Reform1 found: “Absentee ballots remain the largest source of potential

voter fraud.” Comm’n on Fed. Elections Reform, Building Confidence in U.S.

Elections 46 (2005) [hereinafter Building Confidence]. As the Seventh Circuit so

colorfully described it: “Voting fraud is a serious problem in the U.S. elections

generally . . . and it is facilitated by absentee voting. . . . [A]bsentee voting is to

voting in person as a take-home exam is to a proctored one.” Griffin, 385 F.3d at

1130–31; see also Wrinn v. Dunleavy, 440 A.2d 261, 270 (Conn. 1982) (“[T]here

is considerable room for fraud in absentee voting and . . . a failure to comply with

the regulatory provision governing absentee voting increases the opportunity for

fraud.” (citation omitted)); Adam Liptak, Error and Fraud at Issue as Absentee

Voting Rises, N.Y. Times (Oct. 6, 2012), http://nyti.ms/QUbcrg (discussing a

variety of problems in states).

The Commission on Federal Election Reform recommended that “States . . .

should reduce the risks of fraud and abuse in absentee voting by prohibiting ‘third-

party’ organizations, candidates, and political party activists from handling

absentee ballots.” Building Confidence, supra, at 46. It made a formal

1
The Commission on Federal Election Reform was organized by American
University’s Center for Democracy and Election Management and supported by
the Carnegie Corporation of New York, The Ford Foundation, the John S. and
James L. Knight Foundation, and the Omidyar Network. It was co-chaired by
former President Jimmy Carter and former Secretary of State James Baker.

3
recommendation:

State and local jurisdictions should prohibit a person from handling
absentee ballots other than the voter, an acknowledged family member, the
U.S. Postal Service or other legitimate shipper, or election officials. The
practice in some states of allowing candidates or party workers to pick up
and deliver absentee ballots should be eliminated.

Id. at 47 (Recommendation 5.2.1). Arizona’s restrictions hew closely to the

Commission’s recommendation. H.B. 2023 provides that “A person who

knowingly collects voted or unvoted early ballots from another person is guilty of a

class 6 felony.” Ariz. Rev. Stat. Ann. § 16-1005(H) (codifying H.B. 2023).

Consistent with the Commission’s recommendation, the law does not apply to

three classes of persons: (1) “[a]n election official,” (2) “a United States postal

service worker or any other person who is allowed by law to transmit United States

mail,” and (3) “[a] family member, household member or caregiver of the voter.”

Id. § 16-1005(H)–(I)(1). I don’t see how Arizona can be said to have violated

constitutional or statutory norms when it follows bipartisan recommendations for

election reform in an area well understood to be fraught with the risk of voter

fraud. Nothing could be more damaging to confidence in our elections than fraud

at the ballot box. See Liptak, supra (describing a study by a political scientist at

MIT finding that election officials rejected 800,000 absentee ballots in the 2008

presidential election; “That suggests an overall failure rate of as much as 21

4
percent.”).

II

Moreover, the Arizona provision is substantially similar to the laws in effect

in other states. In Indiana, for example, it is a felony for anyone to collect a voter’s

absentee ballot, with exceptions for members of the voter’s household, the voter’s

designated attorney in fact, certain election officials, and mail carriers. Ind. Code

§ 3-14-2-16(4). Connecticut also restricts ballot collection, permitting only the

voter, a designee of an ill or disabled voter, or the voter’s immediate family

members to mail or return an absentee ballot. Conn. Gen. Stat. § 9-140b(a). New

Mexico likewise permits only the voter, a member of the voter’s immediate family,

or the voter’s caregiver to mail or return an absentee ballot. N.M. Stat. Ann. § 1-6-

10.1. At least seven other states (Georgia, Missouri, Nevada, North Carolina,

Oklahoma, Ohio, and Texas) similarly restrict who can personally deliver an

absentee ballot to a voting location. Ga. Code Ann. § 21-2-385(a) (limiting who

may personally deliver an absentee ballot to designees of ill or disabled voters or

family members); Mo. Rev. Stat. § 115.291(2) (restricting who can personally

deliver an absentee ballot); Nev. Rev. Stat. § 293.330(4) (making it a felony for

anyone other than the voter or the voter’s family member to return an absentee

ballot); N.C. Gen. Stat. § 163-231(b)(1) (allowing only family members or

5
guardians to personally deliver an absentee ballot); Okla. Stat. Tit. 26, § 14-108(C)

(voter delivering a ballot must provide proof of identity); Ohio Rev. Code Ann.

§ 3509.05(A) (limiting who may personally deliver an absent voter’s ballot); Tex.

Elec. Code Ann. § 86.006(a) (permitting only the voter to personally deliver the

ballot).2

Other states are somewhat less restrictive than Arizona because they permit

a broader range of people to collect early ballots from voters but restrict how many

ballots any one person can collect and return. Colorado forbids anyone from

collecting more than ten ballots. Colo. Rev. Stat. § 1-7.5-107(4)(b); cf. Ga. Code

Ann. § 21-2-385(b) (prohibiting any person from assisting more than ten

physically disabled or illiterate electors in preparing their ballot). North Dakota

prohibits anyone from collecting more than four ballots, N.D. Cent. Code § 16.1-

07-08(1); New Jersey, N.J. Stat. Ann. § 19:63-4(a), and Minnesota, Minn. Stat.

Ann. § 203B.08 sbd. 1, three; Arkansas, Ark. Code Ann. § 7-5-403, Nebraska,

2
Moreover, at least two states had similar provisions on the books until
recently. California formerly limited who could return mail ballots to the voter’s
family or those living in the same household. Cal. Elec. Code § 3017. It only
amended its law earlier this year. 2016 Cal. Legis. Serv. Ch. 820. Illinois also
used to make it a felony for anyone but the voter, his or her family, or certain
licenced delivery companies to mail or deliver an absentee ballot. 10 Ill. Comp.
Stat. 5/19-6 (1996); 10 Ill. Comp. Stat. 5/29-20(4). Illinois amended that provision
in 2015 to let voters authorize others to mail or deliver their ballots. 10 Ill. Comp.
Stat. 5/19-6 (2015).

6
Neb. Rev. Stat. § 32-943(2), and West Virginia, W. Va. Code § 3-3-5(k), two.

South Dakota prohibits anyone from collecting more than one ballot without

notifying “the person in charge of the election of all voters for whom he is a

messenger.” S.D. Codified Laws § 12-19-2.2.

Still other states have adopted slightly different restrictions on who may

collect early ballots. California and Maine, for example, make it illegal to collect

an absentee ballot for compensation. 2016 Cal. Legis. Serv. Ch. 820 (amending

California Election Code § 3017 to enable anyone to collect an early ballot

provided they receive no compensation); 21-A Me. Rev. Stat. Ann. § 791(2)(A)

(making it a crime to receive compensation for collecting absentee ballots); see

also Fla. Stat. § 104.0616(2) (making it a misdemeanor to receive compensation

for collecting more than two vote-by-mail ballots); N.D. Cent. Code § 16.1-07-

08(1) (prohibiting a person to receive compensation for acting as an agent for an

elector); Tex. Elec. Code Ann. § 86.0052 (criminalizing compensation schemes

based on the number of ballots collected for mailing).

Some of the laws are stated as a restriction on how the early voter may

return a ballot. In those states, the voter risks having his vote disqualified. See,

e.g., Wrinn v. Dunleavy, 440 A.2d 261, 272 (Conn. 1982) (disqualifying ballots

and ordering a new primary election when an unauthorized individual mailed

7
absentee ballots). In other states, as in Arizona, the statute penalizes the person

collecting the ballot. See Ind. Code § 3-14-2-16 (making it a felony knowingly to

receive a ballot from a voter); Nev. Rev. Stat. § 293.330(4) (making it a felony for

unauthorized persons to return an absentee ballot); Tex. Elec. Code Ann. § 86.006

(making it a misdemeanor for an unauthorized person to possess between one and

twenty ballots and a felony to possess more than twenty); see also Murphy v. State,

837 N.E.2d 591, 594–96 (Ind. Ct. App. 2005) (affirming a denial of a motion to

dismiss a charge for unauthorized receipt of a ballot from an absentee voter);

People v. Deganutti, 810 N.E.2d 191, 198 (Ill. App. Ct. 2004) (affirming

conviction for absentee ballot violation); see also Ga. Code Ann. § 21-2-385(b)

(providing for penalties up to ten years and a fine of $100,000 for anyone assisting

more than ten physically disabled or illiterate electors). In those states, the ballot,

even if collected improperly, may be valid. See In re Election of Member of Rock

Hill Bd. of Educ., 669 N.E.2d 1116, 1122–23 (Ohio 1996) (holding that a ballot

will not be disqualified for technical error).

III

“[T]he right to vote is the right to participate in an electoral process that is

necessarily structured to maintain the integrity of the democratic system.” Burdick

v. Takushi, 504 U.S. 428, 441 (1992). H.B. 2023 is well within the range of

8
regulations that other states have enacted. I see no infirmity, constitutional or

statutory, in Arizona’s efforts to prevent the potential for fraud in the collection of

early ballots. I respectfully dissent.

9