Breaking and Big: En Banc 9th Circuit, on 7-4 Vote, Won’t Require AZ to Count Ballots Cast Out of Precinct; Next to #SCOTUS?

The other shoe just dropped in Arizona.

The Ninth Circuit, en banc, issued this short order declining an injunction pending appeal on the en banc case, and making it clear that when the en banc court considers this matter fully, what will not consider whether such ballots cast in this election should be counted. The court gave a quick cite to the Purcell principle in a short order.

This is a big deal, because there will be a lot of these ballots if history is any guide, and if the presidential election or any other election comes down to whether or not to count these provisional ballots, this matters a lot.

I expect that Democrats will take this to the Supreme Court, as this will be the only chance to get these ballots potentially counted for this election. I don’t think the chances that the Court will issue an injunction pending appeal are high. This looks like one of those cases that will divide 4-4. Hard to see a fifth vote for the argument that AZ’s rule violates Section 2 of the Voting Rights Act coming from Kennedy or Roberts. Possible, but unlikely.

And because this involves the counting of ballots after the election and not the collection of absentee ballots before the election (in the other aspect of the Feldman case), the timetable at the Supreme Court will be a bit more relaxed (but still super expedited).

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