Rivko Knox v. Mark Brnovich

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RIVKO KNOX, No. 18-16613
Plaintiff-Appellant,
D.C. No.
v. 2:18-cv-02089-DLR

MARK BRNOVICH, Attorney
General, in his official capacity OPINION
as Arizona Attorney General,
Defendant-Appellee.

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

Argued and Submitted October 3, 2018
San Francisco, California

Filed October 31, 2018

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

Opinion by Judge Ikuta
2 KNOX V. BRNOVICH

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial of a
preliminary injunction and its bench trial judgment in an
action facially challenging HB 2023, Arizona’s 2016 election
law prohibiting certain persons from collecting voters’ early
mail ballots.

Under HB 2023, 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. Family members, household
members, and caregivers of the voter are exempted from this
general prohibition against collecting ballots.

The panel held that HB 2023 is not preempted by federal
laws regulating the United States Postal Service. The panel
determined that the presumption against preemption applied
in this instance because state regulation of early voting
procedures was not “an area where there has been a history of
significant federal presence,” and that plaintiff failed to rebut
this presumption.

The panel held that HB 2023 does not implicate the First
Amendment rights of ballot collectors like plaintiff. The

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 KNOX V. BRNOVICH 3

panel determined that plaintiff failed to carry her burden of
demonstrating that the conduct of collecting ballots would
reasonably be understood by viewers as conveying any of
plaintiff’s expressive messages or conveying a symbolic
message of any sort.

Finally, the panel rejected plaintiff’s claim that HB 2023
violates her right to due process under the Fifth Amendment
because it is an overly vague criminal statute. The panel held
that HB 2023 provides fair notice of prohibited conduct and
that because the scope of HB 2023 was clear, it posed no
significant threat of arbitrary enforcement.

COUNSEL

Spencer G. Scharff (argued), Scharff PLC, Phoenix, Arizona;
Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix,
Arizona; for Plaintiff-Appellant.

Andrew G. Pappas (argued), Assistant Solicitor General;
Joseph E. La Rue and Kara M. Karlson, Assistant Attorneys
General; Dominic E. Draye, Solicitor General; Mark
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Defendant-Appellee.
4 KNOX V. BRNOVICH

OPINION

IKUTA, Circuit Judge:

Rivko Knox brings a facial challenge to H.B. 2023,
Arizona’s 2016 election law prohibiting certain persons from
collecting voters’ early mail ballots. We conclude that H.B.
2023 is not preempted by federal laws regulating the United
States Postal Service, does not violate the First Amendment’s
protection of speech, and is not an unconstitutionally vague
criminal statute. Accordingly, we affirm.

I

Arizona law permits “[a]ny qualified elector” to “vote by
early ballot,” Ariz. Rev. Stat. § 16-541(A), in addition to
voting in person on Election Day. Voters can either mail in
early ballots or drop them off at an on-site early voting
location in the 27 days leading up to an election. See id. § 16-
542(D). Voters choosing to return their early ballots by mail
need not pay any postage, but their ballots must be received
by 7:00 p.m. on Election Day. Id. §§ 16-542(C), 16-548(A).

Arizona has placed various restrictions on possession of
early ballots. In 1992, Arizona prohibited any person other
than the voter from possessing an unvoted absentee ballot.
See 1991 Ariz. Legis. Serv. ch. 310, § 22 (S.B. 1390) (West).
Arizona later extended this prohibition to unvoted early
ballots of any type, see 1997 Ariz. Legis. Serv. ch. 5, § 18
(S.B. 1003) (West) (codified at Ariz. Rev. Stat. § 16-542(D)).
In 2016, Arizona imposed restrictions on the collection of
early ballots. Under H.B. 2023:
 KNOX V. BRNOVICH 5

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.

Ariz. Rev. Stat. § 16-1005(H). Family members, household
members, and caregivers of the voter are exempted from this
general prohibition against collecting ballots. Id. § 16-
1005(I).

Rivko Knox has been a Democratic precinct
committeeperson (an elected position) for the Acacia Precinct
since 2004.1 Knox engages in door-to-door canvassing of
prospective voters to educate, register, and encourage them to
vote. As part of her canvassing, Knox often encourages
prospective voters to watch for their early ballot to arrive, to
complete it, and to mail it back. Before the 2016 election
cycle, Knox “accepted and delivered at least one voted ballot
for a voter that [she] met while canvassing [prospective
voters], and who requested that [she] deliver their early
ballot.”

Knox states that “[a]ssisting voters with the delivery of
their early ballots was, and continues to be, a part of
expressing [her] political belief that all registered voters have
an opportunity to use their franchise.” Through the act of

1
This undisputed factual background is drawn from Knox’s
declaration in support of her motion for a preliminary injunction.
6 KNOX V. BRNOVICH

collecting and delivering individuals’ voted early ballots,
Knox intends to communicate the message that she
“support[s] the continued and widespread use of voting by
mail, and that the United States’ postal system provides a
secure and easy platform to exercise the franchise and
conduct elections.” Knox also intends her conduct to
communicate the message that “voting is the most
fundamental right in a democratic society and that [she is]
committed to helping qualified electors exercise their right to
vote regardless of who they vote for.”

Prior to the 2016 election cycle, Knox was willing to
assist voters who asked her to deliver their voted early ballot
to a United States mail receptacle or other appropriate ballot
drop-off location. Since H.B. 2023 went into effect, she
understands that she is “prohibited from collecting and
delivering another person’s early ballot.” Knox is now “very
careful not to offer to deliver or accept for delivery another
person’s early ballot, even if they ask for [her] assistance.”

After H.B. 2023 was enacted, Knox canvassed
prospective voters for a candidate seeking election in the
special election for Congressional District 8. During those
efforts, Knox encountered several voters who had not yet
mailed their early ballots. Knox felt compelled to “censor
[herself] by not offering to collect and deliver” their early
ballots. Instead, Knox encouraged them “not to place their
ballots in the mail because it was too late and, instead, to
deliver their ballots to an appropriate location before the polls
closed.”

Knox plans to canvass prospective voters again in the
upcoming 2018 election and would like to collect and deliver
voted mail-in ballots, but fears doing so because of H.B. 2023
 KNOX V. BRNOVICH 7

and the state’s “threats to strictly enforce H.B. 2023.” But for
H.B. 2023, Knox “would affirmatively offer to deliver early
ballots for voters . . . or, at a minimum, [] would be willing to
oblige a voter who requested that [she] deliver his or her
ballot.”

Knox filed this lawsuit in district court, claiming that H.B.
2023 is facially invalid because it: (1) was preempted by
federal law under the Supremacy Clause; (2) violated speech
rights protected by the First Amendment as applied to the
states by the Fourteenth Amendment; and (3) was void for
vagueness because of its failure to define when a person is
deemed to have collected an early ballot in violation of the
Due Process Clause. In her concurrent motion for a
preliminary injunction, Knox asked the court for expedited
relief and to consolidate the hearing on her motion for a
preliminary injunction with a trial on the merits. See Fed. R.
Civ. P. 65(a)(2). After holding a consolidated preliminary
injunction hearing and bench trial, the district court denied
Knox’s motion for a preliminary injunction and ruled against
her on all three of her claims.

Knox timely appealed. We have jurisdiction pursuant to
28 U.S.C. § 1291.2 We review the district court’s conclusions
of law de novo and review its findings of fact for clear error.

2
Knox has standing to bring these claims. See Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016). Although Knox
has not violated H.B. 2023 or been made subject to its penalties, she
alleges she was forced to modify her speech and behavior to comply with
H.B. 2023. This self-censorship in response to a reasonable fear of
prosecution constitutes an injury in fact that would be redressed by a
declaration that H.B. 2023 is unconstitutional. See Ariz. Right to Life
Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003).
8 KNOX V. BRNOVICH

Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th
Cir. 2008) (en banc).

II

We begin with Knox’s claim that H.B. 2023 is preempted
by the federal postal monopoly, as set forth in the Private
Express Statutes, a series of provisions establishing a
monopoly for the U.S. Postal Service, 18 U.S.C.
§§ 1693–1696; 39 U.S.C. §§ 401, 601–606, and their
implementing regulations, 39 C.F.R. §§ 310, 320. To
succeed on such a facial challenge, Knox “must show that ‘no
set of circumstances exists under which the [state] Act would
be valid.’” Puente Ariz. v. Arpaio, 821 F.3d 1098, 1104 (9th
Cir. 2016) (quoting United States v. Salerno, 481 U.S. 739,
746 (1987)).

A

We first outline the legal framework for determining
when a state statute is preempted. The Supremacy Clause of
the Constitution provides that the laws of the United States
“shall be the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. Const. art. VI, cl. 2. “This means that
when federal and state law conflict, federal law prevails and
state law is preempted.” Murphy v. Nat’l Collegiate Athletic
Ass’n, 138 S. Ct. 1461, 1476 (2018).

“[T]he purpose of Congress is the ultimate touchstone in
every pre-emption case.” Wyeth v. Levine, 555 U.S. 555, 565
(2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996)). In determining Congress’s intent, we start “with the
basic assumption that Congress did not intend to displace
 KNOX V. BRNOVICH 9

state law,” Maryland v. Louisiana, 451 U.S. 725, 746 (1981),
and that federal law does not supersede “the historic police
powers of the States” unless “that was the clear and manifest
purpose of Congress.” Wyeth, 555 U.S. at 565 (quoting Lohr,
518 U.S. at 485). This presumption against preemption
applies when a state regulates in an area of historic state
power even if the law “touche[s] on” an area of significant
federal presence. Puente, 821 F.3d at 1104 n.5 (citing Wyeth,
555 U.S. at 565 n.3). In Puente, for instance, although
Arizona’s identity-theft laws had undisputed “effects in the
area of immigration,” we held there was a presumption
against preemption because “the text of the laws regulate[d]
for the health and safety of the people of Arizona.” Id. (citing
Lohr, 518 U.S. at 475). By contrast, there is no presumption
against preemption when the State regulates in an area such
as “national and international maritime commerce,” where
“the federal interest has been manifest since the beginning of
our Republic and is now well established.” United States v.
Locke, 529 U.S. 89, 99 (2000).3

In determining congressional intent, we first consider
whether Congress made its intent to preempt state law clear
through express language in a statute. Oneok, Inc. v. Learjet,
Inc., 135 S. Ct. 1591, 1595 (2015). Even when a statute does
not expressly refer to preemption, Congress may implicitly
preempt state legislation through either field preemption or
conflict preemption. Id.

3
Although some Justices have cast doubt on the continued viability
of the presumption against preemption, see PLIVA, Inc. v. Mensing,
564 U.S. 604, 621–23 (2011) (plurality opinion), the Supreme Court has
not yet abandoned this principle. See Arizona v. United States, 567 U.S.
387, 400 (2012); see also CTS Corp. v. Waldburger, 134 S. Ct. 2175,
2188–89 (2014).
10 KNOX V. BRNOVICH

“Field preemption occurs when federal law occupies a
‘field’ of regulation ‘so comprehensively that it has left no
room for supplementary state legislation.’” Murphy, 138 S.
Ct. at 1480 (quoting R.J. Reynolds Tobacco Co. v. Durham
Cty., 479 U.S. 130, 140 (1986)). In other words, courts will
infer that Congress intended “to displace state law altogether”
when Congress enacts “a framework of regulation so
pervasive that Congress left no room for the States to
supplement it or where there is a federal interest so dominant
that the federal system will be assumed to preclude
enforcement of state laws on the same subject.” Arizona,
567 U.S. at 399 (internal quotations and ellipses omitted)
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947)). “The essential field preemption inquiry is whether
the density and detail of federal regulation merits the
inference that any state regulation within the same field will
necessarily interfere with the federal regulatory scheme.”
Nat’l Fed’n of the Blind v. United Airlines Inc., 813 F.3d 718,
734 (9th Cir. 2016). Because “Congress must clearly
manifest an intention” to “enter and completely absorb the
field” in order to preclude state regulation in that field, Ry.
Mail Ass’n v. Corsi, 326 U.S. 88, 97 (1945), it is necessary to
delineate “the pertinent regulatory field” with specificity,
Nat’l Fed’n, 813 F.3d at 734.

In some limited circumstances where the overall field
appears to be federally regulated, “a federal decision to forgo
regulation in a given area may imply an authoritative federal
determination that the area is best left un regulated, and in
that event would have as much pre-emptive force as a
decision to regulate.” Ark. Elec. Coop. Corp. v. Ark. Pub.
Serv. Comm’n, 461 U.S. 375, 384 (1983). Thus, Congress
can impliedly create a “federally mandated free-market” area
that must be left unregulated by any state enactments. P.R.
 KNOX V. BRNOVICH 11

Dep’t. of Consumer Affairs v. Isla Petroleum Corp., 485 U.S.
495, 500 (1988). But such an unregulated zone is “decidedly
untypical” and cannot be “created subtly.” Id. Courts
consider the “language, history, or policy of” the relevant
federal law to determine whether Congress purposefully acted
to perpetuate a “regulatory gap.” See Ark. Elec., 461 U.S. at
384.

Conflict preemption is narrower than field preemption.
Under conflict preemption principles, “state law is pre-
empted to the extent that it actually conflicts with federal
law.” English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990).
Courts have found conflict preemption in two situations:
[1] “where compliance with both state and federal law is
impossible, or [2] where the state law stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress.” Oneok, Inc., 135 S. Ct. at 1595
(internal quotation marks omitted). A state law may stand as
“an obstacle to the regulatory system Congress chose” if
Congress chooses a specific method of enforcement to
achieve federal goals, and a state law adopts a different
enforcement method that interferes with “the careful balance
struck by Congress.” Arizona, 567 U.S. at 406. If Congress
has not adopted a comprehensive regulatory program in a
specific area, however, the state has “authority to pass its own
laws on the subject.” Id. at 404. For instance, at a time when
Congress had expressed no more than “a peripheral concern”
regarding the employment of aliens not entitled to lawful
residence in the United States, a state had broad authority to
impose civil penalties on such employment. Id. (quoting and
distinguishing De Canas v. Bica, 424 U.S. 351, 360 (1976)).
After Congress later enacted “a comprehensive framework
for combating the employment of illegal aliens,” a similar
12 KNOX V. BRNOVICH

state enactment interfered with Congress’s purposes and was
therefore preempted. Id. (internal quotation marks omitted).

B

Because the preemptive scope of the Private Express
Statutes depends on Congress’s intent, Wyeth, 555 U.S. at
566, we now consider the scope and purpose of these statutes
and their implementing regulations, 39 C.F.R. §§ 310, 320.

“Since its establishment, the United States Postal Service
has exercised a monopoly over the carriage of letters in and
from the United States.” Air Courier Conference of Am. v.
Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 519
(1991). This monopoly has “always been limited to the
carriage of mail for hire,” and did not extend to the “private,
gratuitous carriage” of mail. Regents of Univ. of Cal. v. Pub.
Emp’t Relations Bd., 485 U.S. 589, 597 (1988).

Congress enacted the first statute limiting private carriage
in 1792. Air Courier, 498 U.S. at 526. “In 1825 and 1827,
Acts were passed prohibiting the private carriage of letters
through the use of stages or other vehicles, packet boats, or
other vessels, § 19, ch. 64 of Act of March 3, 1825, 4 Stat.
107, and foot and horse posts, § 3, ch. 61 of Act of March 2,
1827, 4 Stat. 238.” Id. In 1845, Congress enacted “An Act
to reduce the rates of postage, to limit the use and correct the
abuse of the franking privilege, and for the prevention of
frauds on the revenues of the Post Office Department,” which
significantly revised the Private Express Statutes. Id; Act of
Mar. 3, 1872, ch. 43, 5 Stat. 732. According to the Supreme
Court, Congress was motivated to enact the 1845 Act by a
concern that “the Post Office Department continued to run
substantial deficits in spite of high postage rates.” Air
 KNOX V. BRNOVICH 13

Courier, 498 U.S. at 526. Congress recognized that the
Postal Service had a duty “to serve outlying, frontier areas,
even if it meant doing so below cost,” in order “to achieve
national integration and to ensure that all areas of the Nation
were equally served by the Postal Service.” Id. at 527.
Congress believed the Postal Service’s shaky financial
situation was primarily caused by competition from private
companies, which had not been successfully prosecuted under
the 1825 and 1827 Acts. Id. These competitors undercut the
Postal Service’s prices on low-cost routes and left it with only
“high-cost routes and insufficient means to fulfill its mandate
of providing uniform rates and service to patrons in all areas,
including those that are remote or less populated.” Id. at 519.
The best way to address these concerns, Congress decided,
was “driving private expresses out of business and increasing
mail volume of the Post Office” in order to protect the Postal
Services’s revenues and ensure it could fulfill its mission. Id.
at 527. Accordingly, the 1845 Act included a broad
prohibition on private carriage aimed at strengthening the
postal monopoly. Act of Mar. 3, 1872, ch. 43, § 9, 5 Stat.
732. In its modern form, the prohibition on private carriage
reads:

Whoever establishes any private express for
the conveyance of letters or packets, or in any
manner causes or provides for the conveyance
of the same by regular trips or at stated
periods over any post route which is or may
be established by law, or from any city, town,
or place to any other city, town, or place,
between which the mail is regularly carried,
14 KNOX V. BRNOVICH

shall be fined not more than $500 or
imprisoned not more than six months, or both.

18 U.S.C. § 1696(a).4

While ensuring that courier services could not “compet[e]
selectively with the Postal Service on its most profitable
routes,” Air Courier, at 527–28, the Private Express Statutes
did not purport to regulate conduct that did not affect
revenues. Most important here, the 1845 Act carved out a
“private hands” exception, which provided that the Private
Express Statutes “shall not prohibit the conveyance or
transmission of letters or packets by private hands without
compensation.” 18 U.S.C. § 1696(c). This exception was “a
reflection of the limited nature of the monopoly; it was
designed to ensure that private carriage is not undertaken ‘for
hire or reward.’” Regents, 485 U.S. at 597 (citation omitted).

The 1845 Act permitted other exceptions to the postal
monopoly that did not threaten postal revenues. Section
1696(a) provides that the Private Express Statutes do not
“prohibit any person from receiving and delivering to the
nearest post office, postal car, or other authorized depository
for mail matter any mail matter properly stamped.” 18 U.S.C.
§ 1696(a). Section 1694 allows businesses to operate an
internal mail system by carrying letters that relate “to the

4
In 1872, Congress reenacted the Private Express Statutes and
updated its wording without making any substantive changes. Roger P.
Craig & William T. Alvis, The Postal Monopoly: Two Hundred Years of
Covering Commercial as Well as Personal Messages, 12 U.S.F. L. Rev.
57, 74–76 (1977). Compare Act of Mar. 3, 1872, ch. 43, § 9, 5 Stat. 732,
with Act of June 8, 1872, ch. 335, § 228, 17 Stat. 283 (current version at
18 U.S.C. § 1696). The Private Express Statutes have not substantially
changed since the 1872 recodification. Craig & Alvis, supra, at 77.
 KNOX V. BRNOVICH 15

current business of the carrier.” 18 U.S.C. § 1694; Regents,
485 U.S. at 594. And Section 1696(c) allows any “special
messenger employed for the particular occasion only” to
transmit letters. 18 U.S.C. § 1696(c).

The Postal Regulatory Commission’s subsequent
regulations to enforce the Private Express Statutes did not
alter this approach to the scope of the Postal Service’s
monopoly. See 39 C.F.R. §§ 310.1–310.7. The regulations
reiterate the Private Express Statutes’ prohibition on carriage
for hire on postal routes, see 39 C.F.R. § 310.2(a), while
formalizing the statutory exceptions for uncompensated
carriage of mail.5 The Postal Reorganization Act of 1970
later made additional exceptions to the postal monopoly for
compensated carriage, including authorizing the Postal
Regulatory Commission to suspend the postal monopoly for
services described by regulation. 39 U.S.C. § 601(b).6

5
39 C.F.R. §§ 310.2(d)(2), 310.3(b) (permitting delivery of letters of
the carrier); id. §§ 310.2(d)(3), 310.3(c) (permitting delivery of letters
transmitted without compensation); id. §§ 310.2(d)(4), 310.3(d)
(permitting delivery of letters transmitted by special messenger employed
for the particular occasion only); id. §§ 310.2(d)(4), 310.3(e) (permitting
delivery of letters carried prior or subsequent to mailing).
6
The relevant regulations provide for suspension of the postal
monopoly for certain limited activities. See 39 C.F.R. § 320.2 (data
processing materials); id. § 320.4 (certain letters of college and university
organizations); id. § 320.5 (certain international-ocean carrier-related
documents); id. § 320.6 (extremely urgent letters); id. § 320.7
(advertisements accompanying parcels or periodicals); id. § 320.8
(international remailing).
16 KNOX V. BRNOVICH

C

We now turn to Knox’s claim that the Private Express
Statutes and their implementing regulations implicitly
preempt H.B. 2023 through either field preemption or conflict
preemption and that there is no set of circumstances under
which H.B. 2023 would be valid.

We begin by considering whether the presumption against
preemption applies in this context. We conclude that it does,
because state regulation of early voting procedures is not “an
area where there has been a history of significant federal
presence.” Locke, 529 U.S. at 108. Although H.B. 2023
touches on the broader field of letter carriage and delivery,
such incidental effects in an area of federal interest is not
enough to overcome the presumption against preemption.
See Puente, 821 F.3d at 1104 n.5 (citing Wyeth, 555 U.S. at
565 n.3). Therefore, our analysis must focus on whether
Knox rebutted this presumption.

We first consider Knox’s field preemption claim. Our
precedent requires us to begin by “delineat[ing] the pertinent
regulatory field” Congress intended to occupy by enacting the
Private Express Statutes. Nat’l Fed’n, 813 F.3d at 734. The
Supreme Court has already established that the Private
Express Statutes regulate “the conduct of competitors of the
Postal Service,” Air Courier, 498 U.S. at 528 n.5, and does
not address the uncompensated carriage of mail, which poses
no threat to the Post Office’s revenues, see Regents, 485 U.S.
at 597.

H.B. 2023 does not regulate within this field of mail
carriage for hire; rather, it explicitly exempts any “United
States postal service worker . . . engaged in official duties”
 KNOX V. BRNOVICH 17

from regulation. Ariz. Rev. Stat. § 16-1005(H). On its face,
therefore, the Private Express Statutes do not implicitly
preempt H.B. 2023 through field preemption.

To avoid this conclusion, Knox raises two arguments.
First, Knox argues that H.B. 2023 regulates the carriage of
mail for hire because it does not prohibit election officials
and caregivers from collecting ballots, and such individuals
receive salaries for performing their jobs. This argument
fails. H.B. 2023 does not regulate the ballot-collection
activities of election officials or caregivers, but merely
exempts them from the state statute’s prohibition. Moreover,
such individuals are not collecting ballots for a fee in
competition with the Postal Service; rather, their collection of
ballots is merely an incidental part of their jobs.

Second, Knox urges us to read the Private Express
Statutes as expressing a clear and manifest intent to occupy
the broadly defined field of letter carriage and delivery
generally, leaving no room for state regulation of
compensated or uncompensated mail carriers. According to
Knox, by declining to prohibit uncompensated carriage of
mail, Congress intended to prevent regulation of any sort,
state or federal, in this area. See Isla Petroleum, 485 U.S. at
500. In support of this argument, Knox points to the
regulatory exceptions to the Private Express Statutes that
permit specified conduct, and claims that the language
providing that certain conduct is “permitted,” 39 C.F.R.
§ 310.2(d), or “permissible,” id. § 310.3, indicates Congress’s
intent to leave the permitted conduct unregulated by the
state.7

7
Knox also notes other regulations that suspend the postal monopoly
for specified conduct, 39 C.F.R. §§ 320.1–320.9.
18 KNOX V. BRNOVICH

We reject this argument. The Supreme Court made clear
that Congress did not intend to regulate the uncompensated
carriage of mail; Congress’s sole concern was preventing
competitors from reducing the Post Office’s revenues. See
Regents, 485 U.S. at 597–98. The regulations cited by Knox
are consistent with Congress’s focus on competitors rather
than on the field of mail carriage as a whole; they provide that
the postal monopoly does not apply to a limited range of
activities that do not pose a competitive threat to the Post
Office. Carving out specified conduct from a broad
prohibition is not equivalent to regulating that conduct or
ensuring that such conduct may proceed unregulated. Given
the presumption against preemption, the Postal Commission’s
regulations are best read as withdrawing from part of a field,
rather than occupying it. Because Congress has not made a
clear and manifest determination that uncompensated carriage
of mail should be left unregulated by states as well as federal
authorities, see Ark. Elec., 461 U.S. at 383, we conclude that
Congress did not implicitly preempt the field of
uncompensated carriage of mail.8

8
Knox also claims that Congress expressed its intent to regulate the
field of uncompensated carriage of mail by criminalizing interference with
mail carriers. See, e.g., 18 U.S.C. § 1702 (prohibiting taking any letter
“from a letter or mail carrier” with design to “obstruct the
correspondence” or pry into the business of another); see also 18 U.S.C.
§ 1708 (prohibiting theft or receipt of stolen letter “from a letter or mail
carrier”). We reject this argument. On their face, the criminal statutes
cited by Knox apply to interference with mail that is in the U.S. Postal
Service’s custody (whether from a post office, mail depository, or other
receptacle, or in the custody of letter or mail carriers), not to the private
carriage of mail. Nor have we found any case interpreting the statute as
applying to uncompensated letter carriers, as Knox asserts. The cases
cited by Knox are inapposite here, as they apply the statutes to defendants
who have interfered with mail that has been deposited in a U.S. mail
 KNOX V. BRNOVICH 19

We next turn to Knox’s conflict preemption arguments,
and consider whether H.B. 2023 is preempted because it
conflicts with the Private Express Statutes and other postal
regulations. Knox does not argue that compliance with H.B.
2023 and federal law is impossible. Oneok, Inc., 135 S. Ct.
at 1595. Rather, she argues that H.B. 2023 stands as an
obstacle to the operation of comprehensive federal postal
laws. Id.

First, Knox contends that H.B. 2023 obstructs Congress’s
objective of ensuring efficient delivery of the mail. We
disagree. State laws may obstruct the federal postal
monopoly “where state regulation involved a direct, physical
interference with federal activities under the postal power or
some direct, immediate burden on the performance of the
postal functions.” Corsi, 326 U.S. at 96. Applying this
principle, we have held that a local ordinance that required
postal letter carriers to “obtain express consent from residents
before crossing their lawns in the course of mail delivery”
was preempted by federal regulations that “authorize[d]
postal carriers to cross lawns unless the owner objects.”
United States v. City of Pittsburg, Cal., 661 F.2d 783, 784–85
(9th Cir. 1981). Because the local “ordinance interfere[d]
with postal carriers’ federal duty to deliver the mail
efficiently” it was therefore unconstitutional. Id. at 786. No
such conflict is present here: H.B. 2023’s prohibitions
regarding the collection of voters’ early ballots exempt
federal postal officials and therefore do not interfere with any
federal activities under Congress’s postal power. Because
H.B. 2023 exempts federal postal workers from regulation, it
does not frustrate Congress’s objectives in enacting the

receptacle. See United States v. Childs, 598 F.2d 169, 172 (D.C. Cir.
1979); United States v. Wade, 364 F.2d 931, 934 (6th Cir. 1966).
20 KNOX V. BRNOVICH

Private Express Statutes; namely, to protect the postal
monopoly and its ability to generate revenue. Air Courier,
498 U.S. at 525–26.

Next, Knox notes that the Postal Regulatory Commission
has promulgated regulations that suspend the postal
monopoly for the delivery of “extremely urgent letters,”
39 C.F.R. § 320.6, which is relied on by private carriers such
as FedEx and DHL. Knox argues that H.B. 2023 conflicts
with federal law because it would prohibit such private
carriers from accepting a ballot for delivery, despite the
authorization under federal regulation. We reject this
argument for substantially the same reason we rejected her
similar argument in the field preemption context. Congress’s
purpose in enacting the Private Express Statutes was to
protect the Postal Service’s revenues, and a state statute that
prohibits private carriers from collecting state ballots does not
stand as an obstacle to the accomplishment of Congress’s
purpose. Under the presumption against preemption, we
decline to interpret a federal regulation withdrawing a federal
prohibition on certain types of private carriage as conflicting
with a state statute imposing a different prohibition on that
carriage.

We also reject Knox’s argument that H.B. 2023 obstructs
Congress’s goal of achieving “national integration” because
it precludes individuals from offering more efficient methods
of early-ballot delivery. This theory is directly contrary to the
Supreme Court’s analysis of the Private Express Statutes.
According to the Supreme Court, Congress’s goal of
achieving national unity required the Postal Service to reach
all the far-flung reaches of the nation. Air Courier, 498 U.S.
at 528. In order to ensure the Postal Service could generate
sufficient revenues to accomplish this mission, Congress
 KNOX V. BRNOVICH 21

decided to eliminate its competition. Id. Congress did not
consider whether private, uncompensated delivery of mail
might provide more efficient delivery to remote areas; its
only intent was to enhance the Postal Service’s revenues so
it could discharge its duty of providing delivery to such areas.

Finally, we reject Knox’s argument that by imposing
penalties on the uncompensated carriage of letters, H.B. 2023
is an obstacle to the regulatory system chosen by Congress in
enacting the Private Express Statutes. See Arizona, 567 U.S.
at 405–06. Because Congress did not choose to regulate
uncompensated carriers in the Private Express Statutes, a
state has “authority to pass its own laws on the subject.” Id.
at 404. Because H.B. 2023 imposes penalties on individuals
excluded from Congress’s regulatory scheme, it does not
conflict with that regulatory scheme.

Because Congress has not implicitly preempted H.B.
2023 through field or conflict preemption, we conclude that
H.B. 2023 is not preempted by federal law.9

III

We next consider Knox’s claim that H.B. 2023 violates
the First Amendment, made applicable to the states through

9
We also reject Knox’s argument that Congress has superseded
H.B. 2023 pursuant to its authority under the Elections Clause, U.S. Const.
art. I, § 4, cl. 1, because Knox failed to raise this argument distinctly on
appeal. Hilo v. Estate of Marcos, 103 F.3d 767, 778 n.4 (9th Cir. 1996).
Further, Knox fails to identify any federal statute where “Congress
legislates with respect to the ‘Times, Places and Manner’ of holding
congressional elections,” let alone one which supersedes Arizona’s early-
ballot-collection law. Arizona v. Inter Tribal Council of Ariz., Inc.,
570 U.S. 1, 14 (2013).
22 KNOX V. BRNOVICH

the Fourteenth Amendment, by burdening freedom of speech.
In the First Amendment context, a party bringing a facial
challenge need show only that “a substantial number of [a
law’s] applications are unconstitutional, judged in relation to
the statute’s plainly legitimate sweep.” United States v.
Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449
n.6 (2008)).10

The First Amendment, provides that “Congress shall
make no law . . . abridging the freedom of speech.” U.S.
Const. amend I. “While [t]he First Amendment literally
forbids the abridgment only of speech, the Supreme Court has
long recognized that its protection does not end at the spoken
or written word.” United States v. Swisher, 811 F.3d 299,
310–11 (9th Cir. 2016) (internal quotation marks omitted)
(quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)). A
message “delivered by conduct that is intended to be
communicative and that, in context, would reasonably be
understood by the viewer to be communicative” is symbolic
speech protected by the First and Fourteenth Amendments.
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294,
(1984); see also Texas, 491 U.S. at 404. Applying this
principle, the Supreme Court has held that burning an
American flag as part of a demonstration, Texas, 491 U.S. at
406, wearing a black armband to protest the Vietnam war,
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
505 (1969), and “a sit-in by blacks in a ‘whites only’ area to

10
Because Knox seeks a declaration “that H.B. 2023 is
unconstitutional in its entirety” and an injunction preventing enforcement
of the statute for any purpose, we construe her claims as making a facial
challenge, see John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010), even
though some of her arguments are specific to her own circumstances.
 KNOX V. BRNOVICH 23

protest segregation,” Texas, 491 U.S. at 404 (citing Brown v.
Louisiana, 383 U.S. 131, 141–42 (1966)), constitute
expressive conduct protected by the First Amendment.

Nevertheless, the Court has rejected the concept 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). Rather the First Amendment
protects only conduct that “is intended to convey a
‘particularized message’ and the likelihood is great that the
message would be so understood.” Nunez v. Davis, 169 F.3d
1222, 1226 (9th Cir. 1999) (quoting Texas, 491 U.S. at 404).
Because the Court has eschewed a rule that “all conduct is
presumptively expressive,” individuals claiming the
protection of the First Amendment must carry the burden of
demonstrating that their nonverbal conduct meets the
applicable standard. Clark, 468 U.S. at 293 n.5.

Knox argues that the act of collecting early ballots is
expressive conduct. Knox’s sworn declaration states that her
conduct in collecting early ballots communicates the message
that she “support[s] the continued and widespread use of
voting by mail, and that the United States’ postal system
provides a secure and easy platform to exercise the franchise
and conduct elections,” and that “voting is the most
fundamental right in a democratic society and that [she is]
committed to helping qualified electors exercise their right to
vote regardless of who they vote for.” We conclude that she
has not carried her burden of demonstrating that the conduct
of collecting ballots would reasonably be understood by
viewers as conveying any of these messages or conveying a
symbolic message of any sort. See Voting for Am., Inc. v.
Steen, 732 F.3d 382, 392 (5th Cir. 2013) (rejecting argument
24 KNOX V. BRNOVICH

that collecting voter registration documents is inherently
expressive conduct).

Knox also claims that H.B. 2023 is analogous to laws that
burden the ability of individuals to make campaign
contributions or to deliver information through the mail and
therefore raises First Amendment concerns. We disagree;
none of Knox’s analogies are apposite. While restrictions on
“the amount of money a person or group can spend on
political communication during a campaign necessarily
reduces the quantity of expression,” Buckley v. Valeo,
424 U.S. 1, 19 (1976), H.B. 2023 does not limit the ability of
would-be ballot collectors to communicate their messages in
any comparable way. Further, prohibitions against using the
mails to communicate specified types of information (such as
laws prohibiting sending or receiving pornography or
seditious literature through the mail) may raise serious First
Amendment issues. Blount v. Rizzi, 400 U.S. 410, 428
(1971); Lamont v. Postmaster Gen. of U.S., 381 U.S. 301, 305
(1965). But courts have extended such protection to the
senders and recipients of mail, Currier v. Potter, 379 F.3d
716, 727 (9th Cir. 2004), never to the carriers of other
people’s mail.

Further, Knox’s reliance on Bartnicki v. Vopper, 532 U.S.
514, 517–19, 526–27 (2001), which held that the delivery of
a newsworthy recording to the media was protected by the
First Amendment, is also misplaced. In Bartnicki, the
Supreme Court acknowledged that the delivery of a tape
recording of illegally intercepted conversations to a radio
commentator “might be regarded as conduct,” but reasoned
that in context it was “the kind of ‘speech’ that the First
Amendment protects.” Id. at 527. According to the Court,
the purpose of the delivery was “to provide the recipient with
 KNOX V. BRNOVICH 25

the text of recorded statements,” analogizing such conduct to
the act of disclosing and publishing the information. Id. This
rationale does not apply to the delivery of a voter’s early
ballot, which is not conduct analogous to the disclosure and
publication of newsworthy information. Although voted
early ballots constitute the voter’s speech, Knox “does not
‘speak’ in this context by handling another person’s
‘speech.’” Steen, 732 F.3d at 390 (rejecting the argument that
a third party’s collection and delivery of a voter’s completed
registration application constitutes the third party’s speech for
First Amendment purposes).

Accordingly, H.B. 2023 does not implicate the First
Amendment rights of ballot collectors like Knox.

IV

Finally, we consider Knox’s claim that H.B. 2023 violates
her right to due process under the Fifth Amendment because
it is an overly vague criminal statute.11

A

The void for vagueness doctrine is rooted in the Due
Process Clause of the Fifth Amendment. United States v.
Williams, 553 U.S. 285, 304 (2008). “The Fifth Amendment
provides that ‘[n]o person shall . . . be deprived of life,

11
Knox also argues that we should consider her vagueness challenge
under the relaxed standard applicable to criminal statutes that burden
protected speech. See United States v. Williams, 553 U.S. 285, 304
(2008). Because we have concluded that H.B. 2023 does not burden
speech or expressive conduct protected by the First Amendment, we reject
this argument.
26 KNOX V. BRNOVICH

liberty, or property, without due process of law,’” and “the
Government violates this guarantee by taking away
someone’s life, liberty, or property under a criminal law
[1] so vague that it fails to give ordinary people fair notice of
the conduct it punishes, or [2] so standardless that it invites
arbitrary enforcement.” Johnson v. United States, 135 S. Ct.
2551, 2556 (citing Kolender v. Lawson, 461 U.S. 352, 357–58
(1983)). A criminal statute violates the “fair notice”
requirement if it “fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is
forbidden by the statute.” Colautti v. Franklin, 439 U.S. 379,
390 (1979) (internal quotation marks omitted). A statute
violates the “arbitrary enforcement” requirement if it is “so
indefinite that it encourages arbitrary and erratic arrests and
convictions.” Id. (internal quotation marks omitted). In other
words, “ordinary notions of fair play and the settled rules of
law,” Johnson, 135 S. Ct. at 2557, are violated if police
officers, prosecutors, and judges are essentially “defining
crimes and fixing penalties” by filling statutory gaps “so large
that doing so becomes essentially legislative.” United States
v. Evans, 333 U.S. 483, 486–87 (1948).

B

H.B. 2023 does not violate either the fair notice or the
arbitrary enforcement requirements.

First, H.B. 2023 provides fair notice of the prohibited
conduct. It states 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). It then
exempts from that prohibition “[a]n election official, a United
States postal service worker or any other person who is
allowed by law to transmit United States mail . . . if the
 KNOX V. BRNOVICH 27

official, worker or other person is engaged in official duties.”
Id. A reasonable person would understand that this language
generally prohibits the collection of ballots but makes
exceptions for (1) an election official, if engaged in official
duties, and (2) U.S. postal service workers and other persons
allowed by law to transmit U.S. mail, if engaged in official
duties. Knox points to no evidence that the public has had
difficulties in understanding or complying with H.B. 2023.

Knox’s primary argument is that the exception for “any
other person who is allowed by law to transmit United States
mail . . . if . . . engaged in official duties” is unclear. We
disagree. A person of ordinary intelligence would understand
that the language covers persons who have official duties
involving the delivery of United States mail, provided that
they are engaged in such duties at the time they pick up the
ballots (and not volunteering as third-party ballot collectors
during their days off). See Democratic Nat’l Comm. v.
Reagan, — F. 3d —, No. 18-15845, 2018 WL 4344291, at *4
(9th Cir. Sept. 12, 2018) (summarizing all exceptions to H.B.
2023); Knox v. Brnovich, — F. Supp.3d —, No. CV-18-
02089-PHX-DLR, 2018 WL 4042765, at *8 (D. Ariz. Aug.
27, 2018).

Knox also argues that H.B. 2023 is vague because the
exception for “any other person allowed by law to transmit
United States mail” could be interpreted as exempting
everyone in the country. She reasons that the private hands
exemption to the postal monopoly effectively allows anyone
to deliver United States mail, so long as the delivery is
uncompensated. Such a reading would deprive H.B. 2023 of
any meaningful impact, because it would effectively allow
anyone to collect early ballots. We reject this argument,
because a person of ordinary intelligence would not read H.B.
28 KNOX V. BRNOVICH

2023 in a manner that would make its restrictions
meaningless. Indeed, Knox herself stated that she understood
H.B. 2023 prohibits her from collecting early ballots.
Moreover, we have stated that H.B. 2023’s restrictions are
meaningful. See Feldman v. Ariz. Sec’y of State’s Office,
843 F.3d 366, 368 (9th Cir. 2016) (en banc) (stating that H.B.
2023 made “the collection of legitimate ballots by third
parties a felony”).

We also reject Knox’s argument that a plain reading of
the exception makes it duplicative of the separate exception
for “a United States postal service worker.” Federal law
authorizes government officials who are not employees of the
Postal Service to deliver U.S. mail as part of their official
duties. See, e.g., 39 U.S.C. § 406 (authorizing Department of
Defense and Department of Transportation personnel “to
perform postal services” at branch post offices at “camps,
posts, bases, or stations of the Armed Forces and at defense
or other strategic installations”); see also 39 U.S.C. § 413
(authorizing Department of State personnel “to perform
postal services” at branch post offices at United States
diplomatic missions in locations abroad). Under H.B. 2023,
such officials would not qualify as postal service workers, but
would qualify as “any other person who is allowed by law to
transmit United States mail.”

We also reject Knox’s argument that it is unclear when an
individual is “engaged in official duties” when collecting
early ballots. Similar phrases are common in the federal
criminal code12 and have been upheld against vagueness

12
See, e.g., 18 U.S.C. § 111 (criminalizing anyone who “assaults,
resists, opposes, impedes, intimidates, or interferes with” any federal
employee or official while they are “engaged in or on account of the
 KNOX V. BRNOVICH 29

challenges. See United States v. Linn, 438 F.2d 456, 458
(10th Cir. 1971); United States v. Varkonyi, 645 F.2d 453,
456–57 (5th Cir. 1981).

Finally, Knox claims that she could qualify as an
“election official . . . engaged in official duties” because her
duties as a precinct committeeperson include the delivery of
United States mail. We disagree. No person of ordinary
intelligence would conclude that a precinct committeeperson
is an election official who is authorized to collect early
ballots as part of her official duties. Compare Ariz. Rev. Stat.
§ 16-822(E) (detailing precinct committeeperson duties), with
39 U.S.C. § 413 (authorizing State Department personnel “to
perform postal services”).

Because the scope of H.B. 2023 is clear, it poses no
significant threat of arbitrary enforcement. A July 16, 2018,
statement issued by the Maricopa County Attorney is not to
the contrary.13 In that statement, the County Attorney stated

performance of official duties . . . ”) (emphasis added); see also 18 U.S.C.
§ 115 (criminalizing the assault, kidnap, or murder, or the attempt or threat
to do so, of a federal official, judge, or law enforcement officer, or their
family member, “with intent to impede, intimidate, or interfere with such
official, judge, or law enforcement officer while engaged in the
performance of official duties, or with intent to retaliate against such
official, judge, or law enforcement officer on account of the performance
of official duties . . . ”) (emphasis added).
13
The Maricopa County Attorney’s July 16, 2018 statement reads in
full:

It has come to my attention that there may be some
confusion about the intention to enforce the election
laws in Arizona. I want to assure anyone who may be
planning to engage in ballot harvesting for this Primary
30 KNOX V. BRNOVICH

he intended to enforce H.B. 2023 and informed anyone who
was planning to engage in “ballot harvesting” that it was a
class 6 felony to collect a ballot “unless you are a family
member, household member, or caregiver for the voter to
whom the ballot was issued.” Although, as Knox argues, the
County Attorney did not state that H.B. 2023 also exempted
postal service workers or other authorized personnel engaged
in official duties, Knox does not explain how such an
omission poses a risk of “encourag[ing] arbitrary and erratic
arrests and convictions,” Papachristou v. Jacksonville,
405 U.S. 156, 162 (1972), or raises the spectre of prosecutors
“defining crimes and fixing penalties” by filling in gaps in
statutes. United States v. Evans, 333 U.S. 483, 486 (1948).
We conclude that H.B. 2023 is not void for vagueness.

AFFIRMED.

Election and General Election that it is a class 6 felony
to knowingly collect a mail-in ballot for the primary
election in August, or for the general election in
November, unless you are a family member, household
member, or caregiver for the voter to whom the ballot
was issued. Based on its concerns about the potential
for fraud and misconduct affecting our elections, the
Arizona State Legislature passed this law in order to
protect the ingerity of Arizona elections. The Maricopa
County Attorney’s Office is committed to protecting
our voting process by enforcing this law. If you are not
authorized by the statute to take possession of another
voter’s ballot, instruct the voter personally to place their
[sic] ballot in the mail, to deliver the ballot in person, or
to vote in person.