Summary
The Ninth Circuit affirmed a preliminary injunction against enforcement of the 2023 Arizona Election Procedures Manual’s Speech Provision, concluding that the plaintiffs showed likely standing and entitlement to preliminary relief. The court reversed the finding of standing as to the Canvass Provision because the alleged disenfranchisement depended on a county failing to timely certify its election results, which plaintiffs had not shown was sufficiently likely. The court vacated the injunction concerning the Canvass Provision and remanded, and agreed that Pullman abstention was inappropriate.
Topics
Practice areas
Questions Presented
- Whether plaintiffs made the clear showing of Article III standing required at the preliminary-injunction stage to challenge the Canvass Provision.
- Whether plaintiffs made the clear showing of standing required to bring a pre-enforcement First Amendment challenge to the Speech Provision.
- Whether plaintiffs satisfied the Winter factors for a preliminary injunction against the Speech Provision.
- Whether the district court should have abstained under the Pullman doctrine because parallel state-court litigation could resolve state-law issues.
- Whether the injunction against the Canvass Provision and Speech Provision should be affirmed.
Holdings
- Plaintiffs failed to make a clear showing that they were likely to suffer an actual or imminent disenfranchisement injury. The claimed injury depended on multiple hypothetical contingencies, including a county's failure to timely certify election results and the failure of the Secretary or another beneficially interested party to obtain timely mandamus or other relief.
- Plaintiffs established standing to challenge the Speech Provision because they intended to engage in political and election-related speech arguably proscribed by the provision and faced a credible or substantial risk of enforcement or adverse government action.
- The district court did not abuse its discretion in preliminarily enjoining the Speech Provision. Plaintiffs showed a likelihood of success on their First and Fourteenth Amendment claims and satisfied the remaining Winter factors.
- Pullman abstention was inappropriate because the required abstention factors were not satisfied, particularly in a First Amendment case involving an important federal interest in free expression and no sufficiently certain or imminent state-court resolution.
Key quotations
“At bottom, too many hypothetical wrongs must occur before Plaintiffs would suffer disenfranchisement: county officials would have to violate their statutorily mandated duty to certify the vote, and both the Secretary and any beneficially interested parties would need to decline to seek mandamus or other relief.” (22)
“This presents enough of a collective threat to create a credible or substantial risk of enforcement.” (34)
“We will not rewrite a law to conform it to constitutional requirements.” (36)
“AFFIRMED in part; REVERSED in part; and VACATED in part.” (43)
Factual background
Arizona's 2023 Election Procedures Manual contained a Canvass Provision describing the Secretary of State's duty to certify statewide election results if a county failed to timely submit its official canvass, and a Speech Provision purporting to summarize voter-intimidation laws. The Speech Provision prohibited activity having the intent or effect of threatening, harassing, intimidating, or coercing voters and gave examples including insulting or offensive language and certain conduct near polling places. Plaintiffs alleged that the Speech Provision chilled their political and election-related speech and that the Canvass Provision could disenfranchise voters if a county failed to timely certify its results.
Procedural history
Plaintiffs filed the federal action on July 8, 2024, challenging the Speech Provision as violating the First Amendment and Fourteenth Amendment and the Canvass Provision as burdening the right to vote. The district court denied the Secretary's motions to dismiss and to stay under Pullman abstention, found standing, and granted preliminary injunctive relief against both provisions. On appeal, the Ninth Circuit affirmed the injunction concerning the Speech Provision and the denial of abstention, but held that plaintiffs lacked standing to challenge the Canvass Provision.
Remand instructions
The case was remanded after reversal of the standing determination concerning the Canvass Provision and vacatur of the injunction as to that provision. The injunction concerning the Speech Provision remained affirmed.