United States v. 2020-10-06 | 20-16759 | ARIZONA DEMOCRATIC PARTY V. KATIE HOBBS | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARIZONA DEMOCRATIC PARTY;
DEMOCRATIC NATIONAL
COMMITTEE; DSCC,
Plaintiffs-Appellees,

v.

K
ATIE HOBBS, in her official
capacity as Arizona Secretary of
State,
Defendant-Appellee,

S
TATE OF ARIZONA,
Intervenor-Defendant-Appellant,

and

EDISON WAUNEKA, in his official
capacity as Apache County
Recorder; D
AVID STEVENS, in his
official capacity as Cochise County
Recorder; P
ATTY HANSEN, in her
official capacity as Coconino County
Recorder; SADIE JO BINGHAM, in her
official capacity as Gila County
Recorder; WENDY JOHN, in her
official capacity as Graham County
Recorder; SHARIE MILHEIRO, in her
official capacity as Greenlee County
No. 20-16759

D.C. No.
2:20-cv-01143-
DLR

2 ARIZONA DEMOCRATIC PARTY V. HOBBS

Recorder; RICHARD GARCIA, in his
official capacity as La Paz County
Recorder; ADRIAN FONTES, in his
official capacity as Maricopa County
Recorder; KRISTI BLAIR, in her
official capacity as Mohave County
Recorder; M
ICHAEL SAMPLE, in his
official capacity as Navajo County
Recorder; F. ANN RODRIGUEZ, in her
official capacity as Pima County
Recorder; VIRGINIA ROSS, in her
official capacity as Pinal County
Recorder; S
UZANNE SAINZ, in her
official capacity as Santa Cruz
County Recorder; LESLIE HOFFMAN,
in her official capacity as Yavapai
County Recorder; R
OBYN
POUQUETTE, in her official capacity
as Yuma County Recorder,
Defendants,

REPUBLICAN NATIONAL COMMITTEE;
ARIZONA REPUBLICAN PARTY;
DONALD J. TRUMP FOR PRESIDENT,
INC.,
Intervenor-Defendants.

ARIZONA DEMOCRATIC PARTY V. HOBBS 3

ARIZONA DEMOCRATIC PARTY;
DEMOCRATIC NATIONAL
COMMITTEE; DSCC,
Plaintiffs-Appellees,

v.

K
ATIE HOBBS, in her official
capacity as Arizona Secretary of
State,
Defendant-Appellee,

REPUBLICAN NATIONAL COMMITTEE;
ARIZONA REPUBLICAN PARTY;
DONALD J. TRUMP FOR PRESIDENT,
INC.,
Intervenor-Defendants-Appellants,

and

EDISON WAUNEKA, in his official
capacity as Apache County
Recorder; DAVID STEVENS, in his
official capacity as Cochise County
Recorder; P
ATTY HANSEN, in her
official capacity as Coconino County
Recorder; S
ADIE JO BINGHAM, in her
official capacity as Gila County
Recorder; W
ENDY JOHN, in her
official capacity as Graham County
Recorder; S
HARIE MILHEIRO, in her
official capacity as Greenlee County
Recorder; R
ICHARD GARCIA, in his
official capacity as La Paz County
No. 20-16766

D.C. No.
2:20-cv-01143-
DLR

ORDER

4 ARIZONA DEMOCRATIC PARTY V. HOBBS

Recorder; ADRIAN FONTES, in his
official capacity as Maricopa County
Recorder; KRISTI BLAIR, in her
official capacity as Mohave County
Recorder; MICHAEL SAMPLE, in his
official capacity as Navajo County
Recorder; F.
ANN RODRIGUEZ, in her
official capacity as Pima County
Recorder; VIRGINIA ROSS, in her
official capacity as Pinal County
Recorder; SUZANNE SAINZ, in her
official capacity as Santa Cruz
County Recorder; L
ESLIE HOFFMAN,
in her official capacity as Yavapai
County Recorder; ROBYN
POUQUETTE, in her official capacity
as Yuma County Recorder,
Defendants,

STATE OF ARIZONA,
Intervenor-Defendant.

Filed October 6, 2020

Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
and Morgan Christen, Circuit Judges.

Order

ARIZONA DEMOCRATIC PARTY V. HOBBS 5

SUMMARY
*

Civil Rights

The panel granted an emergency motion for a stay
pending appeal, sought by the State of Arizona and others,
in an action challenging Arizona’s law requiring early voters
to have signed their ballots by 7:00 PM on Election Day in
order to have their votes counted.

Arizona requires early voters to return their ballots along
with a signed ballot affidavit in order to guard against voter
fraud—a requirement the plaintiffs do not challenge. These
early ballots must be received by polling officials by
7:00 PM on Election Day so that they can be counted. To
enforce these requirements, any ballot with an insufficient
affidavit (including one that is missing a signature) will be
disallowed by polling officials. If an early voter returns a
ballot with an unsigned affidavit, Arizona has afforded him
or her an opportunity to cure the problem, but only until the
general Election Day deadline.

On September 10, 2020, the district court enjoined the
law and ordered Arizona to create and to institute a new
procedure that would grant voters who failed to sign their
ballots up to five days after voting has ended to correct the
error. The State of Arizona and others appealed and sought,
in the meantime, a stay of the district court’s injunction
pending adjudication of the appeal.

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

6 ARIZONA DEMOCRATIC PARTY V. HOBBS

In evaluating the motion for a stay pending appeal, the
panel first held that Arizona had shown a likelihood of
success on the merits. The panel held that Arizona’s
Election Day signature deadline imposes, at most, a
“minimal” burden on those who seek to exercise their right
to vote. Citing the “Anderson-Burdick” framework for
evaluating ballot-access laws, the panel held that a
nondiscriminatory, minimally burdensome voting
requirement will be upheld so long as it reasonably advances
important regulatory interests.

The panel held that the public interest was well served
by preserving Arizona’s existing election laws, rather than
by sending the State scrambling to implement and to
administer a new procedure for curing unsigned ballots at the
eleventh hour. Plaintiffs by contrast stand to face only the
“minimal” burden of ensuring that voters sign their ballot
affidavits by 7:00 PM on Election Day if the law remains in
effect.

COUNSEL

Joseph A. Kanefield, Chief Deputy & Chief of Staff; Brunn
W. Roysden III, Solicitor General; Mark Brnovich, Attorney
General; Drew C. Ensign and Michael S. Catlett, Deputy
Solicitors General; Jennifer J. Wright and Robert J. Makar,
Assistant Attorneys General; Office of the Attorney General,
Phoenix, Arizona; Kory Langhofer and Thomas Basile,
Statecraft PLLC, Phoenix, Arizona; Thomas McCarthy and
Cameron T. Norris, Consovoy McCarthy PLLC, Arlington,
Virginia; Patrick Strawbridge, Consovoy McCarthy PLLC,
Boston, Massachusetts; for Intervenor-Defendants-
Appellants.

ARIZONA DEMOCRATIC PARTY V. HOBBS 7

Alexis E. Danneman and Joshua L. Boehm, Perkins Coie
LLP, Phoenix, Arizona; Kevin J. Hamilton, Mark Erik Elias,
William B. Stafford, Sarah Langberg Schirack, and Ariel
Brynne Glickman, Perkins Coie LLP, Washington, D.C.; for
Plaintiffs-Appellees.

Roopali H. Desai, D. Andrew Gaona, and Kristen Yost,
Coppersmith Brockelman PLC, Phoenix, Arizona, for
Defendant-Appellee.

Gregory G. Jernigan, General Counsel, Arizona State
Senate, Phoenix, Arizona; Andrew G. Pappas, General
Counsel, Arizona House of Representatives, Phoenix,
Arizona; for Amici Curiae Russell Bowers, Speaker of the
Arizona House of Representatives, and Karen Fann,
President of the Arizona State Senate.

Steve Marshall, Attorney General; Edmund G. LaCour Jr.,
Solicitor General; A. Barrett Bowdre, Deputy Solicitor
General; Office of the Attorney General, Montgomery,
Alabama; Leslie Rutledge, Attorney General, Little Rock,
Arkansas; Christopher M. Carr, Attorney General, Atlanta,
Georgia; Lawrence G. Wasden, Attorney General, Boise,
Idaho; Curtis T. Hill Jr., Attorney General, Indianapolis,
Indiana; Derek Schmidt, Attorney General, Topeka, Kansas;
Daniel Cameron, Attorney General, Frankfort, Kentucky;
Jeff Landry, Attorney General, Baton Rouge, Louisiana;
Lynn Fitch, Attorney General, Jackson, Mississippi; Eric S.
Schmitt, Attorney General, Jefferson City, Missouri; Tim
Fox, Attorney General, Helena, Montana; Douglas J.
Peterson, Attorney General, Lincoln, Nebraska; Dave Yost,
Attorney General, Columbus, Ohio; Mike Hunter, Attorney
General, Oklahoma City, Oklahoma; Alan Wilson, Attorney
General, Columbia, South Carolina; Jason Ravnsborg,
Attorney General, Pierre, South Dakota; Herbert Slatery III,

8 ARIZONA DEMOCRATIC PARTY V. HOBBS

Attorney General, Nashville, Tennessee; Ken Paxton,
Attorney General, Austin, Texas; Sean D. Reyes, Attorney
General, Salt Lake City, Utah; and Patrick Morrisey,
Attorney General, Charleston, West Virginia; for Amici
Curiae 20 States.

Jason Torchinsky, Dallin B. Holt, Kenneth C. Daines,
Holtzman Vogel Josefiak Torchinsky PLLC, Haymarket,
Virginia, for Amicus Curiae The Honest Elections Project.

ORDER
In this case, the Arizona Democratic Party and others
have challenged Arizona’s law requiring early voters to have
signed their ballots by 7:00 PM on Election Day in order to
have their votes counted. See Ariz. Rev. Stat. §§ 16-548(A),
16-552(B). On September 10, 2020, less than two months
before the upcoming presidential election, the district court
enjoined the law and ordered Arizona to create and to
institute a new procedure that would grant voters who failed
to sign their ballots up to five days after voting has ended to
correct the error. The State of Arizona and others have
appealed that decision to our court and have sought, in the
meantime, a stay of the district court’s injunction pending
adjudication of the appeal.
I
The Arizona law at issue is straightforward. First,
Arizona requires early voters to return their ballots along
with a signed ballot affidavit in order to guard against voter
fraud—a requirement the plaintiffs do not challenge. Ariz.
Rev. Stat. § 16-548(A). These early ballots must be received
by polling officials by 7:00 PM on Election Day so that they

ARIZONA DEMOCRATIC PARTY V. HOBBS 9

can be counted. Id. And, to enforce these requirements, any
ballot with an insufficient affidavit (including one that is
missing a signature) will be disallowed by polling officials.
Id. § 16-552(B). If an early voter returns a ballot with an
unsigned affidavit, Arizona has afforded him or her an
opportunity to cure the problem, but only until the general
Election Day deadline. See State of Arizona, Elections
Procedures Manual 68–69 (Dec. 2019).
II
In evaluating a motion for a stay pending appeal, we
consider whether the applicant has made a strong showing
of likelihood of success on the merits, whether the applicant
will be irreparably injured without a stay, whether a stay will
substantially injure the other parties, and where the public
interest lies. Al Otro Lado v. Wolf, 952 F.3d 999, 1006–07
(9th Cir. 2020) (citing Nken v. Holder, 556 U.S. 418, 434
(2009)).
Here, as explained below, the factors weigh in favor of a
stay.
A
First, the State has shown that it is likely to succeed on
the merits. As observed by the district court, Arizona’s
Election Day signature deadline imposes, at most, a
“minimal” burden on those who seek to exercise their right
to vote. Under the familiar “Anderson-Burdick” framework
for evaluating ballot-access laws, a nondiscriminatory,
minimally burdensome voting requirement will be upheld so
long as it reasonably advances important regulatory
interests. See Timmons v. Twin Cities Area New Party,
520 U.S. 351, 358 (1997); De La Fuente v. Padilla, 930 F.3d
1101, 1105 (9th Cir. 2019). The State has made a strong

10 ARIZONA DEMOCRATIC PARTY V. HOBBS

showing that its ballot-signature deadline does so. All
ballots must have some deadline, and it is reasonable that
Arizona has chosen to make that deadline Election Day itself
so as to promote its unquestioned interest in administering
an orderly election and to facilitate its already burdensome
job of collecting, verifying, and counting all of the votes in
timely fashion. Indeed, though the parties dispute the
magnitude of the additional burden, there can be no doubt
(and the record contains evidence to show) that allowing a
five-day grace period beyond Election Day to supply
missing signatures would indeed increase the administrative
burdens on the State to some extent.
The plaintiffs argue that the State’s interest is
undermined by the fact that Arizona recently enacted a
narrow exception to the general Election Day deadline for
instances in which a polling official believes that the
signature on a ballot affidavit does not match the voter’s
signature in the voter registration record. In such a case, the
voter will be notified and he or she may cure the problem
within five days after Election Day. See Ariz. Rev. Stat.
§ 16-550(A). But the State has offered a reasonable
explanation for why it has granted a limited opportunity to
correct such “mismatched” signatures but not to supply
completely missing signatures: whereas the failure to sign
one’s ballot is entirely within the voter’s control, voters are
not readily able to protect themselves against the prospect
that a polling official might subjectively find a ballot
signature not to match a registration signature. It is rational,
then, that the State might voluntarily assume some additional
administrative costs to guard against the risk of losing such
votes at potentially no fault of the voters. But the State may
still reasonably decline to assume such burdens simply to
give voters who completely failed to sign their ballots
additional time after Election Day to come back and fix the

ARIZONA DEMOCRATIC PARTY V. HOBBS 11

problem. See also New Ga. Project v. Raffensperger, —
F.3d —, 2020 WL 5877588, at *3 (11th Cir. 2020)
(concluding that Georgia’s Election-Day absentee ballot
deadline is “easily” justified by the State’s interests in
“conducting an efficient election, maintaining order, quickly
certifying election results, and preventing voter fraud”).
1

B
The standard for granting a stay is a “sliding scale.” Al
Otro Lado, 952 F.3d at 1007. Under this approach, the
elements of the test are “balanced, so that a stronger showing
of one element may offset a weaker showing of another.” Id.
(citing Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011)). This consideration drives our
decision here: even though the plaintiffs contend that the
changes to Arizona’s law will likely affect only a small
number of voters and create a relatively low administrative
burden on the State, the State’s probability of success on the
merits is high. See also Abbott v. Perez, 138 S. Ct. 2305,
2324 & n.17 (2018) (recognizing irreparable harm to a
State’s interests where a court order “barr[ed] the State from
conducting this year’s elections pursuant to a
[constitutionally permissible] statute enacted by the
Legislature”). And, as we rapidly approach the election, the
public interest is well served by preserving Arizona’s
existing election laws, rather than by sending the State

1
The State is also likely to succeed in showing that the district court
“erred in accepting the plaintiffs’ novel procedural due process
argument,” because laws that burden voting rights are to be evaluated
under the Anderson/Burdick framework instead. New Ga. Project, — F.
3d —, 2020 WL 5877588, at *3; see also Dudum v. Arntz, 640 F.3d 1098,
1106 n.15 (9th Cir. 2011) (observing that “a single analytic framework”
applies in voting-rights cases, rather than “separate analyses for . . . First
Amendment, Due Process, or Equal Protection claims”).

12 ARIZONA DEMOCRATIC PARTY V. HOBBS

scrambling to implement and to administer a new procedure
for curing unsigned ballots at the eleventh hour. Indeed, the
Supreme Court “has repeatedly emphasized that lower
federal courts should ordinarily not alter the election rules
on the eve of an election.” Republican Nat’l Committee v.
Democratic Nat’l Committee, 140 S. Ct. 1205, 1207 (2020)
(per curiam); see also, e.g., North Carolina v. League of
Women Voters of N.C., 574 U.S. 927 (2014) (mem.) (staying
a lower court order that changed election laws thirty-two
days before the election); Husted v. Ohio State Conference
of NAACP, 573 U.S. 988 (2014) (mem.) (staying a lower
court order that changed election laws sixty-one days before
the election); Purcell v. Gonzalez, 549 U.S. 1 (2006) (per
curiam) (staying a lower court order that changed election
laws thirty-three days before the election). As discussed, the
plaintiffs by contrast stand to face only the “minimal”
burden of ensuring that voters sign their ballot affidavits by
7:00 PM on Election Day if the law remains in effect.
III
The appellants’ Emergency Motions for a Stay Pending
Appeal (Docket Entry No. 4 in 20-16759 and Docket Entry
No. 2 in 20-16766) are GRANTED.
2

2
We also GRANT the motions to file amicus briefs in support of
the State of Arizona’s emergency motion (Docket Entry Nos. 8, 15, and
17 in 20-16759) and the State of Arizona’s Motion for Leave to File a
Consolidated Reply Brief (Docket Entry No. 21 in 20-16759).