Breaking: Divided 9th Circuit Agrees to Hear AZ Ballot Harvesting Case En Banc, But J. Reinhardt Predicts Plaintiffs Will Lose

On October 30 I wrote the following post:

Arizona passed a law limiting who is allowed to collect a completed absentee ballot from voters (so called “ballot harvesting”). Democrats and others filed suit claiming that the law was unconstitutional and a Voting Rights Act violation. A divided 9th Circuit panel voted 2-1 to allow Arizona to enforce the law pending further proceedings (affirming the district court denial of a preliminary injunction). The judges divided along the ideological lines you would expect, with the two conservatives siding with Arizona and the one liberal siding with the plaintiffs.

A 9th Circuit judge has now sua sponte requested en banc consideration, and the court has ordered briefs filed by tomorrow, with an order probably to follow within a day or two (given the exigencies of the election).

I confess I find this to be a difficult case. On the one hand, the state does have an interest in preventing voter fraud, and when fraud does happen (including in parts of Arizona) it has been with absentee ballots and vote buying. Discouraging ballot harvesters can deal with that risk of vote buying. (I am less convinced by the public confidence in the electoral process argument, which seems not to depend on the specific election laws of the state). (As for the Purcell/delay issue, it looks like the problem has been with the timing at the district court, not any dilatory action of the plaintiffs.)

On the other hand, there is some evidence that the great distances in Arizona means that some voters, especially Native Americans, may be burdened by the lack of third parties available to collect ballots.

Now the Ninth Circuit has agreed to hear the case en banc, with a concurrence by Judge Reinhardt and a dissent by Judge O’Scannlain. (The dissent cites the Purcell principle against taking the case. so close to the election.)

Because the 9th Circuit is so big, they generally don’t hear the cases with all the Ninth Circuit judges, just an 11-judge subset. We don’t know exactly who is on the panel, but in a highly unusual move, Judge Reinhardt predicts the larger en banc panel will go against the plaintiffs based on how they voted on taking the case or not:

It is indeed no secret that many states have recently enacted legislation making it more difficult for members of minority groups to vote in presidential elections. Arizona is one. It has done so under the guise of guarding against voter fraud, although not one single case of voter fraud in the history of Arizona elections was identified by the Arizona legislature when it enacted statutes changing its system to attempt to limit the opportunity to vote of members of minority groups — of Hispanics, African Americans, and Native Americans — as well as the poor and infirm. And 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.

In the wake of the panel majority’s opinion upholding the invidious Arizona statute by a 2-1 vote, the judges on this court voted to take the case en banc. 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. I am confident, instead, that the majority of the members of the court agree with Chief Judge Thomas’s persuasive opinion that “the anti-ballot-collection law significantly burdens the voting rights of minorities, particularly Hispanic and Native American voters” and that “[t]he State’s justification of preventing voter fraud was not, and is not, supportable.” Thomas Dissent at 29.

Different members of the court embrace differing legal philosophies and historical understandings regarding the significance of the Voting Rights Act and the Constitution with relation to election restrictions and their discriminatory effects. A decision on an issue of such profound legal and political importance that could affect not only the rights of Arizona citizens but the interests of all Americans in the outcome of a presidential election should not depend on a 2-1 vote of three members of a panel of our court. Rather, our en banc process affords a more representative sampling of this court’s group of judges in helping to decide what fundamental approach to voting rights this Circuit will adopt. An en banc court of eleven is ordinarily far more likely than a panel of three to express the view of the court as a whole.

Unfortunately, however, our en banc process is not perfect and also does not necessarily represent the view of the full court. It is selected by lot, as a full court en banc is ordinarily deemed too unwieldy. Thus, although it is preferable to a three judge panel, in an extraordinary case such as this, it too may not accurately reflect the view of the court as a whole. It is possible that we will be faced with such a case here. The en banc court here is composed of a majority of judges who did not support the en banc call. Although I would hesitate to predict the outcome of the en banc court’s deliberation, it may be that its judgment will not reflect the

view of the full court. Nevertheless, although the en banc court is weighted by chance in favor of those who failed to support en banc rehearing, it still has a better chance of representing the view of the court as a whole than does any panel of three. 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. In my own view, regardless of the decision of the en banc court, I am confident that the court as a whole would have rejected the panel majority’s conclusion and enjoined the enforcement of the Arizona statute, although we will probably never know if I am correct. Whether I am or not, I should emphasize that whatever decision the en banc court reaches will be legitimate and will properly be binding on our court and in our Circuit.

On the Purcell point, Judge Reinhardt writes that the issue is too important to leave alone, especially with the Supreme Court divided 4-4 and leaving these issues to the circuit court:

Notwithstanding Judge O’Scannlain’s arguments as to what the Supreme Court would do, we have a duty to enforce the law and our constitution as we see it. Equally important, despite a similar injunction issued by the Fourth Circuit, the Supreme Court has not intervened to stay any action taken by a circuit court in advance of the 2016 presidential election, but has left such disputes for the circuit courts to resolve. Moreover, this Arizona criminal statute, which applies to third parties and carries a serious jail sentence, is far different from those which the Supreme Court has declined to enjoin in previous election cycles. To calm Judge O’Scannlain’s fears, however, I would note that the Supreme Court is quite capable of timely staying any injunction that our court may issue if it disagrees with us.

This post has been updated.


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