The 9th Circuit Court of Appeals has agreed to hear en banc an appeal from the decision of a three judge panel of the court last week in Feldman v. Arizona, upholding Arizona’s new law prohibiting ballot collection. There was 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.)
The Arizona Capitol Times (subscription required) reports, Full appeals court to review ‘ballot harvesting’ law:
In a brief order this afternoon, the 9th U.S. Circuit Court of Appeals said the full court wants to review the issue.
Today’s order comes a week after the majority of a three-judge panel of the court concluded the state was legally entitled to adopt legislation that makes it a crime for anyone to take someone else’s ballot to the polling place. That law, approved earlier this year by the Republican-controlled legislature, has exceptions only for family members, those in the same household and certain caregivers.
The majority said the state has a legitimate interest in protecting the integrity of the voting process. And they said the fact there isn’t a single instance of fraud from the practice is legally irrelevant.
Chief Justice Sidney Thomas, in his dissent, said there was no reason to remove an option for voting that is heavily used by minorities. Today’s order essentially wipes out that 2-1 ruling against the challengers, giving them another shot at convincing the court that the ban is racially discriminatory.
Given that the election is Tuesday and the court did not schedule a hearing, it is likely the 11 judges will decide the issue based solely on the briefs.
Rick Hasen at Election Law blog adds, Breaking: Divided 9th Circuit Agrees to Hear AZ Ballot Harvesting Case En Banc, But J. Reinhardt Predicts Plaintiffs Will Lose: [I]n 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:
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.
Back to Cap Times:
The action comes as arguments are scheduled for Thursday [at 1:30 p.m.] in Phoenix on claims by Democrats that the Arizona Republican Party, the Trump campaign and their allies are planning to intimidate voters going to the polls on Tuesday. They want U.S. District Court Judge John Tuchi to issue a restraining order to block things like “aggressive questioning” of those coming to vote.
Meanwhile, another federal judge in Phoenix is weighing a bid by Democrats to ensure that those who registered to vote on Oct. 11 should be allowed to cast a ballot this year. Secretary of State Michele Reagan is arguing that the court should enforce the Oct. 10 deadline even though that was both a federal and state holiday and some options to register to vote on that day were not available.
And a ruling is awaited from the same three-judge panel of the 9th Circuit that decided the ballot harvesting case, this one on the question of whether people who voted in the wrong precinct should have their ballots counted.
A federal appeals court refused late Wednesday to order Arizona officials to count the votes of people who cast their ballot at the wrong location.
In a divided ruling (.pdf), the three-judge panel of the 9th Circuit Court of Appeals rejected arguments by Democrats that minorities are more likely to be disenfranchised by showing up at a polling place other than the one assigned to the precinct where they live.
Judge Carlos Bea, writing for the majority, acknowledged there is evidence that minorities are more likely to go to the wrong place. Attorneys for Democrats said that is due to minorities being more likely to be renters and therefore moving more often.
But Bea said that hardly amounts to illegal discrimination. “There is no evidence in the record that minority voters were given misinformation regarding the locations of their correct precinct polling places, while non-minority voters were given correct information,” he wrote. “Nor was there evidence that minority voters’ precinct polling places were located where it would be more difficult for minority voters to find them, than were the corresponding precinct polling places of non-minority voters.”
Most counties have voting by precinct. If someone is not on the official poll list, election officials [are supposed to] redirect them to the proper location [they do not always do so]. But if the person insists on voting there, they are given a “provisional” ballot that is counted only if the person was registered and entitled to vote at that location. [That is not always explained either.]
An attorney for Democrats said nearly 11,000 ballots were not counted in 2012 because of the wrong location. She asked the court to rule that the votes should still count for elections such as for president or senator.
Chief Justice Sidney Thomas disagreed with the ruling. “The numbers are startling,” he wrote. “The rate at which in-person ballots were rejected and not counted because the votes were cast out-of-precinct was 131 percent higher for Hispanics, 74 percent higher for African Americans, and 39 percent higher for Native Americans than for white voters.”
Rick Hasen adds, “Chief Judge Thomas dissented, in a dissent filled with graphs showing how much of an outlier AZ is when it comes to ballots cast in the wrong precinct, and the racial disparities of this rule.”
There will be further appeals.