(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.