AZ Voting Law Challenge Gets En Banc Treatment

     (CN) — In a move that provoked strong words from judges of differing opinions, the Ninth Circuit voted Wednesday to rehear en banc a group of Democratic voters’ challenge to Arizona’s rules regulating who may collect early ballots from voters.
     “The law at issue makes it a felony for most people to accept a ballot that a voter has filled out and deliver it to the appropriate polling place on the voter’s behalf,” Circuit Judge Stephen Reinhardt wrote for the majority. “It punishes the routine actions of many get-out-the-vote organizations and political campaigns.”
     In a 2-1 decision on Oct. 28, a Ninth Circuit panel affirmed a federal judge’s decision against blocking an Arizona law that allows only designated individuals to collect early ballots: election officials, post carriers and family members.
     Breaking the law is a class 6 felon and, Reinhardt wrote, can result in up to year in prison and a $150,000 fine.
     On Wednesday, the same panel also affirmed 2-1 an Arizona law requiring in-person voters to vote in the precincts in which they are registered.
     “That more minorities vote [out-of-precinct] than is reflective of their proportionate number in the electorate does not prove that the precinct vote rule denies or abridges their opportunity to learn of the locations of their precinct polling places or to get to them in time to vote,” Circuit Judge Carlos T. Bea wrote.
     Even if there is a disproportionate hardship, Bea wrote, that hardship has been shown to be sufficiently linked to conditions that have socially or historically caused minority voters to be discriminated against.
     “The [Dr. Allan] Lichtman report [that Feldman used as evidence] does not show how any historical racial discrimination caused more residential mobility or less access to transportation, which it claims are the background reasons for more minority voters than non-minority voters voting in the wrong precinct,” Bea said. “Accordingly, the district court did not clearly err in concluding that Feldman failed to prove that racial discrimination is a substantial cause of any socioeconomic disparities alleged to cause more out-of-precinct voting by minorities.”
     On Friday, the Ninth Circuit voted to rehear that case en banc as well, though the order was not accompanied by any opinion.
     Leslie Feldman, the named lead plaintiff in both cases, was joined by several parties including the Arizona Democratic Party, the Democratic National Committee, former Navajo Nation chairman and first president Peterson Zah and the Hillary Clinton and Bernie Sanders presidential campaigns.
     As to the present case, they argued that the law violates the Voting Rights Act by disproportionately affecting minority voters who are more likely to require someone to collect their ballots for them. They also challenged the law on First and 14th Amendment grounds.
     In the panel decision, Circuit Judge Sandra S. Ikuta wrote that the federal judge correctly found the voters were unlikely to succeed on the merits.
     “[T]he 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,” Ikuta wrote.
     She also noted Feldman agreed that there was a lack of quantitative data supporting her group’s specific position. The voters pointed to data that rural communities are adversely affected by the law because of a lack of access to mail services, but the burden is the same on minorities and non-minorities living in rural areas, the panel found.
     Ikuta said the constitutional challenges were also unlikely to succeed because the act of collecting votes is not expressive conduct protected by the First Amendment, and the added burden on voters does not outweigh the state’s interest in preventing voter fraud and the appearance of voter fraud.
     Reinhardt, however, wrote in the decision to rehear the case that Arizona is one state of many that has enacted laws with the goal of limiting minorities’ opportunities to vote, using potential voter fraud as a pretext.
     “Not one case of voter fraud has been cited to the district court or this court by Arizona when seeking to defend its indefensible and race-based statute,” he wrote. “I am confident that a majority of the members of the court do not support the panel majority’s view that the pretextual risk of voter fraud outweighs the significant burdens on the right to vote imposed by this unconscionable law.”
     Circuit Judge Diarmuid O’Scannlain authored the dissent and had some choice words of his own.
     “We have made a serious mistake by granting rehearing en banc,” he wrote. “Our court risks present chaos and future confusion in pursuit of an outcome the Supreme Court has explicitly told us to avoid. There are no good reasons — and many bad ones — to take this case en banc six days before the election on such a compressed schedule.”
     O’Scannlain noted the unusual procedure with this vote and asked very simply, “Why the rush?”
     Reinhardt said the rush is necessary to stop Arizona from affecting the upcoming election.
     “If we conclude that we ought to do nothing while we still can because acting now might affect the very election that the challenged statute was enacted to distort, we would not only permit Arizona to frustrate the purposes of the Voting Rights Act and the Constitution, but also encourage other state legislatures to pass laws carefully timed to be effectively unreviewable in court and carefully designed to influence the outcome of specific elections,” he wrote.
     He also noted that the en banc court, selected by lot, will be made up mostly of judges who did not want the case to be reheard en banc, and that even the en banc court may not represent the full court’s view.
     However, “[I]t still has a better chance of representing the view of the court as a whole than does any panel of three,” he wrote. “If the en banc court does not reach the conclusion that I believe the full court would have reached, at the least it reflects a proper use of our en banc system.”
     But O’Scannlain said early voting began in Arizona on October 12, and an en banc ruling has the potential to cause great chaos.
     “Upsetting the apple cart 90 percent of the way through voting by issuing an injunction a couple of days before November 8 would fly in the face of Supreme Court guidance counseling against this exact type of last-minute interference,” he wrote. “The en banc court could render a decision in the next five days in hopes of enjoining Arizona’s law before Election Day and then deal with the consequences of its decision later. Or, it could take whatever time it deems necessary to gain a thorough mastery of the record, to hear oral argument from the parties, and to write a considered opinion in plenty of time for the next election.
     “One hopes cooler heads prevail and this case receives the attention it deserves — but I fear instead a shoot-first, ask-questions-later approach that will haunt us for years to come.”

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