Promise Arizona v. Petersen

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 1, 2024
• Docket: 24-4029
• Status: Published

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MI FAMILIA VOTA; VOTO No. 24-3188 LATINO; LIVING UNITED FOR D.C. No. CHANGE IN ARIZONA; LEAGUE OF 2:22-cv-00509-SRB UNITED LATIN AMERICAN CITIZENS District of Arizona, ARIZONA; ARIZONA STUDENTS' Phoenix ASSOCIATION; ADRC ACTION; INTER TRIBAL COUNCIL OF ARIZONA, ORDER INC.; SAN CARLOS APACHE TRIBE; ARIZONA COALITION FOR CHANGE; UNITED STATES OF AMERICA; PODER LATINX; CHICANOS POR LA CAUSA; CHICANOS POR LA CAUSA ACTION FUND; DEMOCRATIC NATIONAL COMMITTEE; ARIZONA DEMOCRATIC PARTY; ARIZONA ASIAN AMERICAN NATIVE HAWAIIAN AND PACIFIC ISLANDER FOR EQUITY COALITION; PROMISE ARIZONA; SOUTHWEST VOTER REGISTRATION EDUCATION PROJECT; TOHONO O'ODHAM NATION; GILA RIVER INDIAN COMMUNITY; KEANU STEVENS; ALANNA SIQUIEROS; LADONNA JACKET,

Plaintiffs - Appellees,

v.

ADRIAN FONTES, in his official capacity as Arizona Secretary of State; KRIS MAYES, Arizona Attorney General, in her official capacity as Arizona Attorney General; STATE OF ARIZONA; LARRY NOBLE, Apache County Recorder, in his official capacity; DAVID W. STEVENS, Cochise County Recorder, in his official capacity; PATTY HANSEN, Coconino County Recorder, in her official capacity; SADIE JO BINGHAM, Gila County Recorder, in her official capacity; SHARIE MILHEIRO, Greenlee County Recorder, in her official capacity; RICHARD GARCIA, La Paz County Recorder, in his official capacity; STEPHEN RICHER, Maricopa County Recorder, in his official capacity; KRISTI BLAIR, Mohave County Recorder, in her official capacity; MICHAEL SAMPLE, Navajo County Recorder, in his official capacity; GABRIELLA CAZARES- KELLY, Pima County Recorder, in her official capacity; SUZANNE SAINZ, Santa Cruz County Recorder, in her official capacity; RICHARD COLWELL, Yuma County Recorder, in official capacity; DANA LEWIS, Pinal County Recorder, in official capacity; POLLY MERRIMAN, Graham County Recorder, in her official capacity; JENNIFER TOTH, in her official capacity as Director of the Arizona Department of Transportation; MICHELLE BURCHILL, Yavapai County Recorder, in official capacity,

Defendants - Appellees,

WARREN PETERSEN, President of the Arizona Senate; BEN TOMA, Speaker of

2 24-3188 the Arizona House of Representatives; REPUBLICAN NATIONAL COMMITTEE,

Intervenor-Defendants - Appellants,

----------------------------------------

ARIZONA REPUBLICAN PARTY,

Intervenor - Pending.

MI FAMILIA VOTA; VOTO No. 24-3559 LATINO; LIVING UNITED FOR D.C. No. CHANGE IN ARIZONA; LEAGUE OF 2:22-cv-00509-SRB UNITED LATIN AMERICAN CITIZENS District of Arizona, ARIZONA; ARIZONA STUDENTS' Phoenix ASSOCIATION; ADRC ACTION; INTER TRIBAL COUNCIL OF ARIZONA, INC.; SAN CARLOS APACHE TRIBE; ARIZONA COALITION FOR CHANGE; UNITED STATES OF AMERICA; PODER LATINX; CHICANOS POR LA CAUSA; CHICANOS POR LA CAUSA ACTION FUND; DEMOCRATIC NATIONAL COMMITTEE; ARIZONA DEMOCRATIC PARTY; ARIZONA ASIAN AMERICAN NATIVE HAWAIIAN AND PACIFIC ISLANDER FOR EQUITY COALITION; PROMISE ARIZONA; SOUTHWEST VOTER REGISTRATION EDUCATION PROJECT; TOHONO O'ODHAM NATION; GILA RIVER INDIAN COMMUNITY; KEANU STEVENS; ALANNA SIQUIEROS; LADONNA JACKET,

3 24-3188 Plaintiffs - Appellees,

KRIS MAYES, Arizona Attorney General; STATE OF ARIZONA,

Defendants - Appellants,

PROMISE ARIZONA; SOUTHWEST No. 24-4029 VOTER REGISTRATION EDUCATION D.C. No. PROJECT, 2:22-cv-00509-SRB District of Arizona, Plaintiffs - Appellants, Phoenix

and

MI FAMILIA VOTA, VOTO LATINO, LIVING UNITED FOR CHANGE IN ARIZONA, LEAGUE OF UNITED LATIN AMERICAN CITIZENS ARIZONA, ARIZONA STUDENTS' ASSOCIATION, ADRC ACTION, INTER TRIBAL COUNCIL OF ARIZONA, INC., SAN CARLOS APACHE TRIBE, ARIZONA COALITION FOR CHANGE, UNITED STATES OF AMERICA, PODER LATINX, CHICANOS POR LA CAUSA, CHICANOS POR LA CAUSA ACTION FUND, DEMOCRATIC NATIONAL COMMITTEE, ARIZONA DEMOCRATIC PARTY, ARIZONA

4 24-3188 ASIAN AMERICAN NATIVE HAWAIIAN AND PACIFIC ISLANDER FOR EQUITY COALITION, TOHONO O'ODHAM NATION, GILA RIVER INDIAN COMMUNITY, KEANU STEVENS, ALANNA SIQUIEROS, LADONNA JACKET,

Plaintiffs,

ADRIAN FONTES, LARRY NOBLE, DAVID W. STEVENS, PATTY HANSEN, SADIE JO BINGHAM, SHARIE MILHEIRO, RICHARD GARCIA, STEPHEN RICHER, KRISTI BLAIR, MICHAEL SAMPLE, GABRIELLA CAZARES- KELLY, SUZANNE SAINZ, RICHARD COLWELL, DANA LEWIS, POLLY MERRIMAN, JENNIFER TOTH, MICHELLE BURCHILL,

Defendants,

WARREN PETERSEN; BEN TOMA; REPUBLICAN NATIONAL COMMITTEE,

Intervenor-Defendants - Appellees,

5 24-3188 ----------------------------------------

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Before: Kim McLane Wardlaw, Ronald M. Gould, and Patrick J. Bumatay, Circuit Judges. Dissent by Judge Patrick J. Bumatay.

PER CURIAM:

On July 18, 2024, a motions panel of this court granted in part and denied in

part Intervenors-Defendants-Appellants’ emergency motion to stay the district

court’s judgment. Dkt. 76. The motions panel issued a stay pending appeal as to

“the portion of the [lower court’s] injunction barring enforcement of A.R.S. § 16-

121.01(C),” id., a provision of law which, prior to the partial stay, had never taken

effect in Arizona. The motions panel concluded that Intervenors-Defendants-

Appellants “failed to satisfy the standard for a stay pending appeal in all other

respects” and declined to stay any other portion of the district court’s judgment.

Id. The motions panel stated that “[t]his order is subject to reconsideration by the

panel assigned to decide the merits of the appeal.” Id.

Certain non-U.S. Plaintiffs-Appellees filed an emergency motion for

reconsideration of the partial stay before the panel assigned to decide the merits of

6 24-3188 this appeal, seeking relief “as soon as possible.” Dkt. 97. The State of Arizona

and its Attorney General, who had opposed the issuance of the stay, do not oppose

the motion for reconsideration. Dkt. 99, at 1; Dkt. 62, at 1. Intervenors-

Defendants-Appellants oppose the motion for reconsideration. Dkt. 100.

Plaintiffs-Appellees’ emergency motion for reconsideration of the partial stay

pending appeal (Dkt. 97) is GRANTED. We VACATE the motions panel’s order

to the extent it stays the district court’s injunction barring enforcement of A.R.S.

§ 16-121.01(C). No portion of the district court’s judgment shall be stayed

pending appeal.

A motion for reconsideration must “state with particularity the points of law

or fact which, in the opinion of the movant, the Court has overlooked or

misunderstood.” Cir. R. 27-10(a)(3).1 We consider four factors with respect to a

1 Intervenors-Defendants-Appellants argue that “[o]nly the en banc Court has authority to review a stay order for error.” Dkt. 100, at 1. Intervenors-Defendants- Appellants are incorrect. Federal Rule of Appellate Procedure 35 provides for matters that “may”—not “must”—be reheard en banc. Fed. R. App. P. 35(a). The motions panel expressly provided that its order is subject to reconsideration by the merits panel. Dkt. 76. And the Intervenors-Defendants-Appellants and the moving non-U.S. Plaintiff-Appellees agree that the motions panel’s order is “not binding” on the merits panel. Dkt. 100, at 3 (quoting E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 660 (9th Cir. 2021) (en banc)); Dkt. 111, at 3. “[W]hile a merits panel does not lightly overturn a decision made by a motions panel during the course of the same appeal, we do not apply the law of the case doctrine as strictly in that instance.” United States v. Houser, 804 F.2d 565, 568 (9th Cir. 1986), abrogated on other grounds by Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816– 17 & n.5 (1988). If we are persuaded that the decision of the motions panel “is clearly erroneous and its enforcement would work a manifest injustice,” Gonzalez v.

7 24-3188 stay pending appeal: “(1) whether the stay applicant has made a strong showing

that he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will substantially

injure the other parties interested in the proceeding; and (4) where the public

interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (quotation omitted). The

burden of demonstrating that these factors weighed in favor of a stay lay with the

proponent—in this case, the Intervenors-Defendants-Appellants. Id. at 433–34.

The likelihood of success and irreparable injury “are the most critical” factors. Id.

These two factors fall on “a sliding scale in which the required degree of

irreparable harm increases as the probability of success decreases.” Humane Soc’y

of U.S. v. Gutierrez, 523 F.3d 990, 991 (9th Cir. 2008). On one end of the

continuum, the proponent must show a “strong likelihood of success on the merits”

and at least “the possibility of irreparable injury to the [proponent] if preliminary

relief is not granted.” Golden Gate Restaurant Ass’n v. City & County of San

Francisco, 512 F.3d 1112, 1116–17 (9th Cir. 2008) (quotation omitted),

application to vacate stay denied, 2008 WL 11580109 (U.S. Feb. 21, 2008)

(Kennedy, J., in chambers). “At the other end of the continuum, the moving party

Arizona, 677 F.3d 383, 396, 389 n.4 (9th Cir. 2012) (en banc), aff’d sub nom. Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 (2013), or a “showing” otherwise has been “made which compels us to reconsider [the motions panel’s] prior decision,” Houser, 804 F.3d at 568, we may exercise our discretion to set aside the motions panel’s decision.

8 24-3188 must demonstrate that serious legal questions are raised and that the balance of

hardships tips sharply in its favor.” Id. (quoting Lopez v. Heckler, 713 F.2d 1432,

1435 (9th Cir. 1983)); see Manrique v. Kolc, 65 F.4th 1037, 1041 (9th Cir. 2023)

(explaining that, “[e]ven with a high degree of irreparable injury, the movant must

show ‘serious legal questions’ going to the merits” to warrant a stay) (citing Lopez,

713 F.2d at 1435–36).

We exercise our discretion to reconsider and vacate in part the motions

panel’s July 18 order. The motions panel’s order failed to provide a reasoned

analysis of the Nken factors with respect to A.R.S. § 16-121.01(C), and we do not

see how a balancing of these factors could weigh in favor of a stay. Moreover, the

motions panel overlooked “considerations specific to election cases” and

misunderstood the extent of confusion and chaos that would be engendered by a

late-stage alteration to the status quo of Arizona’s election rules in apparent

disregard of the Supreme Court’s admonitions in Purcell v. Gonzalez, 549 U.S. 1,

7 (2006) (per curiam).2

1. Intervenors-Defendants-Appellants have not demonstrated “a strong

likelihood of success on the merits.” Golden Gate Restaurant Ass’n, 512 F.3d at

2 Not only did the motions panel fail to acknowledge Purcell, it failed to follow the Court’s instruction to the Ninth Circuit motions panel whose ruling was reversed in Purcell that “[i]t was still necessary, as a procedural matter, to give deference to the discretion of the district court.” 549 U.S. at 7.

9 24-3188 1115 (quotation omitted). The LULAC Consent Decree remains in force and is

binding on the parties. As the district court held, the Decree requires the Secretary

of State to direct County Recorders to accept state form registration applications

submitted without documentary proof of citizenship (“DPOC”) and to register such

applicants consistent with the Decree. Mi Familia Vota v. Fontes, No. CV-22-

00509, 2024 WL 2244338, at *1 (D. Ariz. May 2, 2024), ECF No. 720; Mi Familia

Vota v. Fontes, 2024 WL 862406, at *2, *3 n.10 (D. Ariz. Feb. 29, 2024), ECF No.

707. Because it requires County Recorders to reject such applications (and in fact

criminalizes those who knowingly fail to do so), A.R.S. § 16-121.01(C) directly

contravenes the requirements of the Decree.

Unless the Decree is set aside or modified, Intervenors-Defendants-

Appellants are unlikely to prevail. A consent decree approved by a court is an

enforceable, final judgment with the force of res judicata. S.E.C. v. Randolph, 736

F.2d 525, 528 (9th Cir. 1984); see also Rufo v. Inmates of Suffolk Cnty. Jail, 502

U.S. 367, 391 (1992) (“[A] consent decree is a final judgment that may be

reopened only to the extent that equity requires.”). Thus, “the equitable decree

based on the [parties’] agreement is subject to the rules generally applicable to

other judgments and decrees.” Gates v. Shinn, 98 F.3d 463, 468 (9th Cir. 1996).

As a final judgment, a consent decree “may not lawfully be revised, overturned or

10 24-3188 refused faith and credit by another Department of Government.” Taylor v. United

States, 181 F.3d 1017, 1024 (9th Cir. 1999) (en banc) (quotation omitted).

Intervenors-Defendants-Appellants offered no authority to the contrary

before the motions panel. They contended only that the executive arms of the State

could not, by agreeing to the LULAC Consent Decree, divest the Arizona

Legislature of its sovereign power to change voting registration laws prospectively.

Dkt. 50, at 12–14; see also Dkt. 100, 4–5 (raising similar arguments in opposition

to the instant motion). But as the movants point out, the Consent Decree has no

such effect. It cabins the authority of the parties to the Decree—the Arizona

Secretary of State and Maricopa County Recorder—to act contrary to it. We

recognized sitting en banc in Taylor that “[t]he Constitution’s separation of

legislative and judicial powers denies [Congress] the authority” to “enact[]

retroactive legislation requiring an Article III court to set aside a final judgment.”

181 F.3d at 1026; see also id. at 1024 (“Congress may change the law and, in light

of changes in the law or facts, a court may decide in its discretion to reopen and set

aside a consent decree . . . but Congress may not direct a court to do so with

respect to a final judgment (whether or not based on consent) without running

afoul of the separation of powers doctrine.”). Intervenors-Defendants-Appellants

offer no authority to suggest that a state legislature may nullify a final judgment

entered by an Article III court which Intervenors-Defendants-Appellants have not

11 24-3188 sought to set aside, modify, or otherwise terminate, and we see no reason why the

same principle articulated in Taylor should not apply with equal force here. See

Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“Chief Justice Marshall spoke for a

unanimous Court in saying that: ‘If the legislatures of the several states may, at

will, annul the judgments of the courts of the United States, and destroy the rights

acquired under those judgments, the constitution itself becomes a solemn

mockery.’” (quoting United States v. Peters, 9 U.S. (5 Cranch) 115, 136 (1809))).

That the court that entered the decree “did not retain jurisdiction, as it could have

done,” only supports the view that the Decree is a final judgment under Taylor.

181 F.3d at 1023; Dkt. 100, at 6.3 It does not suggest that the preclusive effect of

the final judgment disappeared or “expired” after the docket was closed.4

3 Relying on Martin v. Wilks, 490 U.S. 755, 762 (1989), Intervenors- Defendants-Appellants argue that they are entitled to “challenge the consent decree in [this] separate action.” Dkt. 100, at 6 (quotation omitted). Martin held that non- parties may not be bound by a judgment in personam in a litigation in which they were not joined. See 490 U.S. at 763–64. As Intervenors-Defendants-Appellants recognize, they are not bound by the final judgment of the LULAC Consent Decree. Dkt. 100, at 7 (“Whatever ongoing obligations the Plaintiffs ascribe to the LULAC Consent Decree do not extend to the Legislature[.]”). No party has sought to bind Intervenors-Defendants-Appellants to that judgment in this action. The principle articulated in Martin thus has no bearing on the issues presented in this appeal. 4 Because we agree with the movants that Intervenors-Defendants- Appellants have failed to demonstrate a likelihood of success on the merits with respect to the LULAC Consent Decree, we do not reach their alternative arguments under the NVRA and the Equal Protection Clause. See Dkt. 97, at 5–15.

12 24-3188 2. Even assuming that Intervenors-Defendants-Appellants had raised

“serious legal questions going to the merits” with respect to A.R.S. § 16-

121.01(C), Golden Gate Restaurant Ass’n, 512 F.3d at 1116 (quotation omitted),

they did not show “a high degree of irreparable injury,” Manrique, 65 F.4th at

1041, or that the balance of equities otherwise tips “sharply” in their favor, Golden

Gate Restaurant Ass’n, 512 F.3d at 1116 (quotation omitted). Intervenor-

Defendant-Appellant Republican National Committee (“RNC”) failed to show that

the RNC will face irreparable harm absent a stay with respect to A.R.S. § 16-

121.01(C). The RNC alleged that the existence of voters who are registered to

vote in federal elections (so called “federal-only voters”) inflicts irreparable harm

upon it. Dkt. 100, at 17. But the RNC has not at any point explained why the use

of the State Form to register applicants without accompanying DPOC to vote in

federal elections, when identically situated applicants may register for at least

federal elections without accompanying DPOC through the Federal Form even

with a stay in place, inflicts an irreparable “competitive injury” on the RNC.

Simply put, the RNC has not shown that enforcement of A.R.S. § 16-121.01(C)

specifically will prevent a likelihood of irreparable harm pending appeal.

Intervenors-Defendants-Appellants the President of the Arizona State Senate

Warren Petersen and Speaker of the Arizona House of Representatives Ben Toma

(together, “the Legislators”), assert that the district court’s judgment inflicts an

13 24-3188 irreparable injury to the State’s lawmaking interest by enjoining one of its duly

enacted laws. Dkt. 100, at 13–14. The Arizona Attorney General, which

represents the State in this action, see A.R.S. § 41-193(A)(3), opposed issuance of

a stay on the ground that any harm to the State’s lawmaking interest was

outweighed by the State’s law-administering interest in avoiding “confusion and

chaos for voters and election officials alike in the upcoming 2024 election cycle.”

Dkt. 52, Ex. 1, at 2; Dkt. 62 at 2 (citing Dkt. 52). The State maintains this position

at the reconsideration stage. Dkt. 99.

The movants and the Attorney General dispute Intervenors-Defendants-

Appellants’ authority to represent the State’s interests in this litigation. See Dkt.

97, at 16; Dkt. 62, at 8. No party has disputed the Attorney General’s authority.

Without reaching the question whether Intervenors-Defendants-Appellants have

authority that overlaps with that of the Attorney General to represent the State’s

interests in this case, we find that the Legislators have not shown a “high degree of

irreparable injury” to the State absent a stay. Manrique, 65 F.4th at 1041.

Intervenors-Defendants-Appellants have pointed to no binding authority

suggesting that enjoining enforcement of a duly enacted law by itself inflicts the

“high degree of irreparable injury” on the state required to warrant a stay without a

strong showing of likelihood of success on the merits. Id. Indeed, the Attorney

General has repeatedly represented in this appeal that both the State’s law-making

14 24-3188 and law-administering interests would be “better served by denying a stay.” Dkt.

62, at 4. Given the conflicting statements of the State’s interests and the lack of

persuasive authority offered in support of the stay, Intervenors-Defendants-

Appellants failed to demonstrate the “high degree of irreparable injury” required

for a stay in the absence of a strong likelihood of success on the merits. Manrique,

65 F.4th at 1041.

3. The movants contend that the remaining Nken factors strongly favor

reconsideration and vacatur of the motions panel’s order. We agree. A judicial

stay is ordinarily a mechanism to preserve, not upset, the status quo pending

appeal. Nken, 556 U.S. at 429. That principle applies with even greater force in

the elections context, where court orders—especially “bare” orders offering “no

explanation”—can “result in voter confusion and consequent incentive to remain

away from the polls.” Purcell, 549 U.S. at 4–5. For that reason, 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 Cmte. v.

Democratic Nat’l Cmte., 589 U.S. 423, 424 (2020) (per curiam).

The motions panel overlooked this fundamental principle of judicial

restraint, resulting in manifest injustice to voters and elections officials alike.

Since the LULAC Consent Decree in 2018, elections officials have registered

otherwise qualified voters who used the State Form without DPOC as eligible to

15 24-3188 vote at least in federal elections. Those who submitted a State Form without

DPOC yet had DPOC on file with the Motor Vehicles Division were registered for

all elections whether they applied with the Federal or State Form. The motions

panel’s order upset the status quo, altering the voter registration rules just days

before Arizona’s July 30 primary and well into the registration timeline for the

November general election. Parties, including the State of Arizona, its Attorney

General, and its Secretary of State, sounded the alarm that such an intervention

would “only create confusion and chaos for voters and election officials alike.”

Dkt. 52, at 4.

Their warnings proved prescient. The practical effect of the stay has been to

subject elections officials to a class 6 felony offense for knowingly failing to reject

state form registration applications without accompanying DPOC. See A.R.S.

§ 16-121.01(C). Yet officials are also subject to a class 2 misdemeanor offense for

failing to abide by the provisions of the Election Procedures Manual (“EPM”),

which carries the force of law, Arizona Public Integrity Alliance v. Fontes, 475

P.3d 303, 308 (Ariz. 2020), and was adopted in 2023 in compliance with the

LULAC Consent Decree, Dkt. 52, Ex. 1, at 2. Consistent with the lower court’s

judgment in this case and the LULAC Consent Decree, the EPM provides that

elections officials must accept the registration applications of otherwise qualifying

16 24-3188 applicants who do not provide DPOC for at least federal elections.5 See generally

Dkt. 97, Ex. 5. In response to the motions panel’s stay order, Arizona’s County

Recorders have announced that they will no longer accept any State Forms without

DPOC (in apparent violation of the EPM and the LULAC Consent Decree but

consistent with the motions panel’s stay order), while the State Forms themselves

continue to provide that otherwise eligible applicants without DPOC who use the

State Form will be eligible to vote in federal elections, consistent with the EPM.

Dkt. 97, Ex. 3, at 3. Further, applicants whose documentary proof of citizenship is

already on file with the State and is instantly accessible by state elections officials

will see their voter registration applications summarily rejected on the incredible

basis that they have not provided the State with documentary proof of citizenship.

Dkt. 111, at 1; Dkt. 99, at 2.

In Purcell, the Court made clear that the uncertainty engendered by judicial

disruptions to the status quo in the midst of elections can and often will cause

eligible voters to remain away from the polls. 549 U.S. at 4–5. The Court

emphasized that “the possibility that qualified voters might be turned away from

the polls” should “caution any . . . judge to give careful consideration” before

5 Specifically, the EPM provides that an otherwise eligible applicant who does not submit DPOC with their voter registration form but has DPOC on file with the Arizona Motor Vehicles Division will be registered as a full ballot voter whether they apply with the State or Federal Form. All other otherwise eligible applicants will be registered as federal-only voters.

17 24-3188 intervening in a state’s elections. Id. at 4. The motions panel’s failure to adhere to

the Supreme Court’s warning in Purcell has caused a manifest injustice. Elections

officials are now subject to conflicting criminal penalties, orders, and policies.

Identically situated voter registration applicants are treated differently depending

on the voter registration application form they pick up. Applicants whose DPOC is

on file with the State and accessible to state officials will see their registrations

denied for failure to provide DPOC to the State. Voters whose registrations were

valid prior to the motions panel’s stay order but would not be valid if they were

submitted after the stay order could be forgiven for wondering whether their

registrations remain valid in advance of the upcoming election. And those who

seek to register to vote in Arizona in the lead up to the November election may be

unwilling to do so given the confusing and uncertain policies applicable under the

eleventh-hour intervention of the motions panel. All Arizonans must now navigate

an arcane web of shifting and confusing rules that will without a doubt dissuade

some who are otherwise eligible and willing from exercising the fundamental right

to vote.

Under the circumstances, we are compelled to exercise our discretion to

reconsider the motions panel’s order and reinstate the status quo in Arizona as it

has been since 2018 pending this expedited appeal. Accordingly, we VACATE

18 24-3188 the portion of the motions panel’s order staying in part the judgment of the district

court.

IT IS SO ORDERED.

19 24-3188 FILED AUG 1 2024 Mi Familia Vota, et al. v. Petersen, et al., No. 24-3188; 24-3559; 24-4029 BUMATAY, J., dissenting MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Election-law disputes are critical in a government based on popular

sovereignty. After all, the outcomes of these cases determine how the people will

choose who will govern them. But these cases are also the most perilous for courts.

When any result may affect the election process, courts risk becoming entangled in

political concerns. Thus, we must pay special attention to follow regular order and

adjudicate these cases exactly as we would any other—there’s no room for judicial

innovations, unusual exceptions, or cut corners.

Unfortunately, we abandon regularity here. Before a motions panel of our

court, Intervenor-Appellants moved to stay a lower-court injunction. The motions

panel unanimously granted it in part. Plaintiffs-Appellees then moved for

reconsideration of the motions panel’s order. Motions for reconsideration of a

motions panel’s order are not meant to be a second bite at the apple. On the contrary,

they are highly irregular and strongly disfavored, primarily appropriate if there have

been “[c]hanges in legal or factual circumstances” since the motions panel addressed

the issue. Ninth Cir. R. 27-10(a)(3). Indeed, our standard for reconsideration is so

high that, to grant it, we must declare that our colleagues on the motions panel

committed a “manifest injustice.” Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th

Cir. 2012) (en banc) (simplified). It’s thus no surprise that reconsideration under

these circumstances rarely happens. 1 Yet facing identical legal and factual circumstances on an even more

expedited basis, the majority now grants the motion and lifts the partial stay. What’s

so pressing that makes Plaintiffs-Appellees entitled to the extraordinary remedy of

reconsideration when nothing has changed in the case? Why flirt with the perception

that we have adjudicated this dispute on something other than its merits? The answer

is unclear to me, as it undoubtably will be to those citizens planning to vote in

Arizona’s election. All the public can take away from this episode is that four judges

of the Ninth Circuit have voted to partially stay the injunction here, while two other

judges voted against it. The two judges prevail—not because of any special insight,

but because of the luck of an internal Ninth Circuit draw.

Regardless, the motions panel had the answer right the first time. Given the

majority’s rush to act, I outline only the main arguments against granting

reconsideration here. In short, Intervenor-Appellants have carried their burden on

all four Nken factors: likelihood of success on the merits, irreparable harm, the

balance of interests, and the public interest. Nken v. Holder, 556 U.S. 418, 434

(2009). Reviewing these factors, we should have denied the motion for

reconsideration and declined to revisit the partial stay of the injunction.

For these reasons, I respectfully dissent.

I. Background

2 In Arizona, eligible residents may register to vote in all elections—federal,

state, and local—using either a registration form created by the State (“State Form”)

or one created by the United States Election Assistance Commission (“Federal

Form”). Mi Familia Vota v. Fontes, No. CV-22-00509, 2024 WL 862406, at *2 (D.

Ariz. Feb. 29, 2024). To vote in state and local elections, Arizona requires eligible

voters to provide documentary proof of citizenship (“DPOC”), such as a birth

certificate, driver’s license, or U.S. passport. See Ariz. Rev. Stat. § 16-166(F). The

Supreme Court has held that the National Voting Rights Act (“NVRA”) prohibits

Arizona from requiring DPOC from voters who register with the Federal Form, see

Arizona v. Inter Tribal Council of Ariz. Inc. (“ITCA”), 570 U.S. 1, 20 (2013), and so

Arizona requires DPOC only from voters who register with the State Form. Federal

Form registrants whose citizenship cannot be verified are given a “Federal-Only”

designation that permits them to vote in federal elections, but not state or local ones.

Mi Familia Vota, 2024 WL 862406, at *1–2. In 2022, the Arizona Legislature

enacted Arizona Revised Statutes § 16-121.01(C), which requires state election

officials to reject any State Forms which are “not accompanied by satisfactory

evidence of citizenship.”

Plaintiffs-Appellees challenged this law and others in federal district court.

The district court ruled that § 16-121.01(C) is unenforceable for two reasons: First,

it is preempted by the NVRA, Mi Familia Vota, 2024 WL 862406, at *39–40; and

3 second, it is barred by a consent decree entered into by the Arizona Secretary of State

in 2018. See League of United Latin Am. Citizens of Ariz. v. Reagan, No. 2:17-cv-

04102 (D. Ariz.) (June 18, 2018). This consent decree (“LULAC decree”) provides

that when a State Form does not come with DPOC, the county recorder must attempt

to confirm the applicant’s state citizenship by searching the records of the Arizona

Department of Transportation. If the applicant’s state citizenship can be confirmed,

he is registered to vote in all elections; if it can’t, then he is registered as a “Federal-

Only” voter. Mi Familia Vota, 2024 WL 862406, at *3–4. The district court’s

permanent injunction was entered in May 2024.

Warren Peterson, in his official capacity as President of the Arizona State

Senate; Ben Toma, in his official capacity as the Speaker of the Arizona House of

Representatives; and the Republican National Committee (“Intervenor-Appellants”)

moved for a partial stay of the district court’s order, which the district court denied.

Intervenor-Appellants then moved for a stay of the district court’s injunction. A

motions panel of our court partially granted the stay on July 18, 2024, permitting

§ 16-121.01(C) to go into effect.

A little more than a week later, on July 26, Plaintiffs-Appellees moved for

reconsideration on an emergency basis via Ninth Circuit Rule 27-3. We ordered a

greatly expedited response from Intervenor-Appellants due just a few days later, on

July 29.

4 II. Motions for reconsideration are strongly disfavored.

To begin, motions for reconsideration are strongly disfavored by our court.

See Ninth Cir. R. 27-10 Advisory Committee Note (explaining that motions for

reconsideration “of orders entered by a motions panel are not favored by the Court”).

Beyond general disfavor, our court’s rules explain that a motion for reconsideration

should be brought only if “in the opinion of the movant, the Court has overlooked

or misunderstood” “points of law or fact,” or if there have been “[c]hanges in [the]

legal or factual circumstances.” Ninth Cir. R. 27-10(a)(3).

Under the rules, our reconsideration’s stringent standard hasn’t been met.

While “a motions panel’s legal analysis, performed during the course of deciding an

emergency motion for a stay, is not binding on later merits panels,” we are not

adjudicating the merits at this stage. See Innovation Law Lab v. Wolf, 951 F.3d 1073,

1081 (9th Cir. 2020) (simplified) (emphasis added), vacated and remanded sub nom.

Mayorkas v. Innovation L. Lab, 141 S. Ct. 2842 (2021). Freeing the merits panel to

come to its own determination makes sense. A court at the merits stage has the

benefit of lengthy briefing, oral argument, and (perhaps most importantly) time to

thoroughly consider and research each issue. But a merits panel deciding a motion

for reconsideration before the merits stage, as we do here, is no better informed or

positioned to decide this issue than the motions panel. We face a similarly

abbreviated timeline with similarly limited briefing. Nor have Plaintiffs-Appellees

5 cited any specific facts or points of law that the motions panel misunderstood. And

there have been no new developments here since the motions panel issued its order.

Indeed, the only thing that has changed is the composition of the panels. And this

change shouldn’t compel a different result.

Plaintiffs-Appellees make a conclusory assertion that upholding the motions

panel’s order “will work a manifest injustice.” Plaintiffs-Appellees speak of the

supposed “judicially created confusion” resulting from the motions panel’s order.

Such speculation isn’t enough to meet our high reconsideration standard. First, none

of this is new. Claims of confusion were brought directly to the motions panel.

Second, that the 2023 Elections Procedures Manual (“EPM”) and the websites of the

Arizona Secretary of State and county recorders have not yet been updated to reflect

the motions panel’s order (indeed, perhaps because they are awaiting the outcome of

this expedited motion for reconsideration) does not indicate that any voters are

actually confused. Third, all this is undercut by the Arizona Secretary of State’s own

admission that “the EPM may memorialize court rulings as of its adoption date, but

to the extent such rulings are reversed or modified on appeal, the statutory

requirements as interpreted by the court will control over any contrary provisions in

the EPM.”

So our high standard for reconsideration is, on its own, enough to warrant

denying this motion. But the motion is also wrong on the facts and the law. As I

6 discuss below, the Nken factors all support the motions panel stay for § 16-

121.01(C).

III. The Nken factors all favor issuing a partial stay.

We look at four factors when considering an application to stay a district

court’s injunction: “(1) whether the stay applicant has made a strong showing that

he is likely to succeed on the merits; (2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the stay will substantially injure the

other parties interested in the proceeding; and (4) where the public interest lies.”

Nken, 556 U.S. at 434 (simplified). “The first two factors . . . are the most critical.”

Id. Additionally, when the Government is a party to a case, as is the case here, “the

balance of the equities and public interest factors merge.” Chamber of Com. v.

Bonta, 62 F.4th 473, 481 (9th Cir. 2023).

The motions panel had it right the first time. Intervenor-Appellants satisfied

the Nken standard for a stay pending appeal with respect to the portion of the

injunction barring enforcement of § 16-121.01(C). As a result, we should have

denied the motion for reconsideration.

a. Likelihood of Success on the Merits

i. The LULAC decree does not bind the Arizona Legislature.

Plaintiffs-Appellees argue that the district court was right to enjoin the

enforcement of § 16-121.01(C) because it conflicts with Arizona’s obligations under

7 the LULAC decree. Recall that the LULAC decree, entered into by the Arizona

Secretary of State, requires Arizona election officials to attempt to determine the

state citizenship of State Form registrants who do not provide DPOC, and register

them as full-ballot voters if their state citizenship can be validated. Mi Familia Vota,

2024 WL 862406, at *3–4. Perhaps Plaintiffs-Appellees’ contention that these

directives conflict with the election officials’ obligations under § 16-121.01(C) is

correct. Perhaps not. But their contention that this somehow binds the Arizona

Legislature is clearly incorrect.

The notion that any action by a State executive-branch official may forever

curtail a State legislature’s lawmaking powers presents significant separation-of-

powers concerns—concerns that even the district court realized constituted a

“serious legal question.” For example, imagine a State’s executive branch opposes

a law passed by the Legislature; if a political ally sues challenging that law, the

executive branch will be sorely tempted to settle the case by agreeing that the law is

unenforceable. It seems doubtful that the executive branch can circumvent

legislative authority in that and similar ways. And the Supreme Court has echoed

this concern specifically with respect to consent decrees, recognizing that if they are

not properly limited in scope, they have the potential to “improperly deprive future

officials of their designated legislative and executive powers.” Horne v. Flores, 557

U.S. 433, 449–50 (2009) (simplified); see also Roosevelt Irrigation Dist. v. Salt

8 River Project Agric. Improvement and Power Dist., 39 F. Supp. 3d 1051, 1055 (D.

Ariz. 2014) (explaining that “political subdivisions” of the State are not bound by

agreements or judgments to which the State is a party, absent specific language to

the contrary).

While these separation-of-powers concerns would apply to any restriction of

the Legislature’s lawmaking powers, they’re particularly alarming in the election-

law context, where State legislatures have express constitutional authority to act.

The Constitution provides that the “Times, Places, and Manner of holding

Elections . . . shall be prescribed in each State by the Legislature thereof.” U.S.

Const. art. I, § 4. The Supreme Court has stressed that election regulation is a

legislative concern. See Moore v. Harper, 600 U.S. 1, 10 (2023) (observing that the

“state legislatures” have the “‘duty’ to prescribe rules governing federal elections”

(simplified)); see also Carson v. Simon, 978 F.3d 1051, 1060 (8th Cir. 2020) (“[T]he

Secretary [of State] has no power to override the Minnesota Legislature” by

stipulating to the tabulation of absentee ballots received after Election Day.).

These separation-of-powers concerns are likely what animate the many cases

signifying that legislative acts must predominate over consent decrees, not the other

way around. After all, consent decrees cannot be used to handcuff governments in

perpetuity. As a general matter, consent decrees may need to give way to intervening

changes in law, including legislative enactments. See, e.g., Rufo v. Inmates of Suffolk

9 Cnty. Jail, 502 U.S. 367, 388 (1992) (“[A] consent decree must of course be modified

if . . . one or more of the obligations placed upon the parties has become

impermissible under federal law,” and that modification may also be warranted

“when the statutory or decisional law has changed to make legal what the decree was

designed to prevent”); Agostini v. Felton, 521 U.S. 203, 215 (1997) (noting, in the

context of consent decrees, that “[t]he court cannot be required to disregard

significant changes in law . . . if it is satisfied that what it has been doing has been

turned through changed circumstances into an instrument of wrong” (simplified));

League of Residential Neighborhood Advocates v. City of Los Angeles, 498 F.3d

1052, 1055 (9th Cir. 2007) (observing that a consent decree “cannot be a means for

state officials to evade state law”); Keith v. Volpe, 118 F.3d 1386, 1393 (9th Cir.

1997) (explaining that parties to a consent decree “c[annot] agree to terms which

would exceed their authority and supplant state law”); Imprisoned Citizens Union v.

Ridge, 169 F.3d 178, 189 (3d Cir. 1999) (recognizing that subsequent legislative acts

can terminate consent decrees premised on a prior legislative act or lack of governing

legislative rules). So when a change in statutory law conflicts with a consent decree,

we should ordinarily expect that the statute ought to be followed.

Especially because this motion is in emergency posture and requires rapid

adjudication, concern for the separation of powers—particularly in the context of

regulating elections—counsels against treating the LULAC decree as binding

10 against the Arizona Legislature’s ability to set election parameters through § 16-

121.01(C). This is reason enough to deny the motion, without even considering the

many other arguments raised by Intervenor-Appellants for why the LULAC decree

doesn’t govern this case.

ii. The NVRA does not preempt Arizona’s DPOC requirement.

Because the LULAC decree offers no lawful basis for overriding Arizona’s

State Form, Plaintiffs-Appellees have to offer some alternative basis to defeat the

motions panel’s stay. Once again, Plaintiffs-Appellees fail to point to any argument

satisfying our stringent standard for reconsideration. Instead, they offer an

alternative holding of the district court (taking up less than three pages in a more

than 100-page order)—that the NVRA preempts the State’s otherwise valid authority

in this area. Plaintiffs-Appellees’ contention fails on the text of the NVRA and our

precedent. In short, the NVRA does not preempt Arizona’s DPOC requirement for

State Forms.

Start with the NVRA’s plain language. To demonstrate preemption a litigant

must point to “a constitutional text or a federal statute t[hat] assert[s]” preemptive

force. Puerto Rico Dep’t of Consumer Affs. v. Isla Petroleum Corp., 485 U.S. 495,

503 (1988); see also Va. Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019) (lead

opinion of Gorsuch, J.) (“Invoking some brooding federal interest or appealing to a

11 judicial policy preference should never be enough to win preemption of a state

law.”). So Congress’s expressions are critical.

Plaintiffs-Appellees point to a few textual components of the NVRA to make

their case.

To begin, the NVRA directs that “in the administration of voter registration

for elections for Federal office, each State shall—. . . ensure that any eligible

applicant is registered to vote in an election—. . . if the valid voter registration form

of the applicant is” properly submitted, received, or accepted “not later than the

lesser of 30 days, or the period provided by State law, before the date of the election.”

52 U.S.C. § 20507(a)(1). In short, if an eligible applicant timely submits a valid

voter registration form for elections for federal office, the State must ensure that the

applicant is registered to vote.

So what does a valid form look like? States must “accept and use” the Federal

Form created by the federal government “for the registration of voters in elections

for Federal office.” Id. § 20505(a)(1). At the same time, “[i]n addition to accepting

and using the [federal] form” a State may also “develop and use” a State Form “that

meets all of the criteria stated in section 20508(b) of this title for the registration of

voters in elections for Federal office.” Id. § 20505(a)(2).

That then brings us to § 20508(b), which sets out the substantive standards for

a State Form. It “may require only such identifying information . . . and other

12 information . . . as is necessary to enable the appropriate State election official to

assess the eligibility of the applicant and to administer voter registration and other

parts of the election process.” Id. § 20508(b)(1). The State Form also “shall include

a statement that—” (A) “specifies each eligibility requirement (including

citizenship);” (B) “contains an attestation that the applicant meets each such

requirement; and” (C) “requires the signature of the applicant, under penalty of

perjury.” Id. § 20508(b)(2).

So where does this leave us? Rather simply, “state-developed forms may

require information the Federal Form does not.” ITCA, 570 U.S. at 12. “States retain

the flexibility to design and use their own registration forms, but the Federal Form

provides a backstop: No matter what procedural hurdles a State’s own form imposes,

the Federal Form guarantees that a simple means of registering to vote in federal

elections will be available.” Id. Moreover, the Court has specifically recognized

“Arizona’s constitutional authority to establish qualifications (such as citizenship)

for voting” and thus to obtain relevant information. See id. at 15–16. So “[s]ince

the power to establish voting requirements is of little value without the power to

enforce those requirements . . . it would raise serious constitutional doubts if a

federal statute precluded a State from obtaining the information necessary to enforce

its voter qualifications.” Id. at 17.

13 Arizona has done exactly what the Court recognized as possible in ITCA. It

has added a requirement to its own form to ensure its ability to verify citizenship.

The district court nonetheless issued an injunction premised on a conflict between

the NVRA and Arizona’s proof-of-citizenship inquiry. Recall that § 20508(b)(1)

requires any additional requirements to be “necessary to enable the appropriate State

election official to assess the eligibility of the applicant and to administer voter

registration and other parts of the election process.” 52 U.S.C. § 20508(b)(1). To

justify enjoining all applications of the law, the district court determined that

Arizona’s requirement was not “necessary.” Mi Familia Vota, 2024 WL 862406, at

*39. Why? Because the requirement applies to new applicants, but not to some

other applicants. Id. (“The Court cannot reconcile why DPOR would be necessary

for new applicants when an attestation is sufficient to determine the eligibility of

registered voters who subsequently obtain an out-of-state identification.”). That’s it.

Even though the NVRA itself identifies “citizenship” as an “eligibility requirement,”

§ 20508(b)(2)(A), the district court was satisfied with its pithy rejoinder to Arizona’s

asserted interest. Id. Indeed, the district court provided no further explanation of

why it thought information demonstrating citizenship was unnecessary. Given the

deference we should give to States in this arena, this isn’t sufficient without an

affirmative showing that Arizona’s law contradicts Congress’s mandate.

14 The failure of the district court to justify its holding, beyond that cursory

statement, would itself validate the motions panel’s stay. But the motions panel did

not need to rely only on the district court’s lack of justification. Our Circuit has in

fact already resolved this question under similar circumstances.

More than fifteen years ago, we considered, in another extraordinary posture,

an Arizona requirement for proof of citizenship as part of the registration process.

Gonzalez v. Arizona, 485 F.3d 1041, 1046 (9th Cir. 2007). And we could not have

been clearer. There, plaintiffs again argued that Arizona law was “preempted by the

NVRA because, they say, the NVRA prohibits states from requiring that registrants

submit proof of citizenship when registering to vote.” Id. at 1050. But, as we said

then, “[t]he language of the statute does not prohibit documentation requirements.”

Id. “Indeed, the statute permits states to ‘require such identifying information as is

necessary to enable election officials to assess the eligibility of the applicant.’” Id.

(simplified). We observed that the “NVRA clearly conditions eligibility to vote on

United States citizenship” and it “plainly allow[s] states, at least to some extent, to

require their citizens to present evidence of citizenship when registering to vote.”

Id. at 1050–51.

The district court’s order cannot abrogate the plain import of ITCA and the

even more specific reasoning in Gonzalez. At the very least, we shouldn’t reconsider

the motions panel’s stay against the backdrop of those two precedents and decide

15 that the district court’s injunction should be reinstated in full. And Plaintiffs-

Appellees’ arguments otherwise are beside the point. They rely on two out-of-circuit

cases, one involving a different provision of the NVRA with a different standard,

Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016), and an Administrative Procedure Act

case deferentially reviewing an administrative determination of necessity, Kobach v.

EAC, 772 F.3d 1183 (10th Cir. 2014). Neither detract from the principles of ITCA,

our circuit’s holding in Gonzalez, and the deficit of reasoning from the district court.

In the alternative, the district court noted, and now Plaintiffs-Appellees raise

on reconsideration, that the NVRA might preempt the State Form under the limited

circumstances when “public assistance agencies” distribute them. See Mi Familia

Vota, 2024 WL 862406, at *39 (citing 52 U.S.C. § 20506(a)(6)). They rely on

language stating that public assistance agencies must provide the Federal Form or

“the office’s own form if it is equivalent to the [federal] form.” Id.

§ 20506(a)(6)(A)(ii). Taking that text in “context and with a view to [its] place in

the overall statutory scheme,” King v. Burwell, 576 U.S. 473, 486 (2015)

(simplified), it is likely that “equivalent” is synonymous with a compliant State

Form—one “that meets all of the criteria stated in section 20508(b) of this title for

the registration of voters in elections for Federal office.” 52 U.S.C. § 20505(a)(2).

Since the district court failed to provide a convincing reason why Arizona’s proof-

of-citizenship requirement fails the test in § 20508(b), there is little reason to think

16 it cannot also be distributed by public assistance agencies. Again, at the very least,

the argument is not so irrefutable that reconsideration is warranted.

In short, the deficit of reasoning to enjoin a state law justified the motions

panel’s stay. Meanwhile, text and on-point precedent further support the motions

panel’s order. To grant reconsideration under these circumstances is extraordinary.

iii. The Equal Protection Clause does not prevent Arizona from accepting two different registration forms.

Plaintiffs-Appellees also assert that the partial stay was improper because

§ 16-121.01(C) violates the Equal Protection Clause of the Fourteenth Amendment.

They argue that by rejecting State Forms without DPOC, but accepting Federal

Forms without DPOC, Arizona treats similarly situated voters in an “arbitrary and

disparate” way.

Plaintiffs-Appellees’ invoke Bush v. Gore, 531 U.S. 98 (2000), to support their

argument. But that doesn’t work. Bush v. Gore, which the Supreme Court

recognized was “limited to the present circumstances,” gives little guidance here.

Id. at 109. And it’s easy to see why. Bush v. Gore prohibits courts from imposing

different standards for counting ballots across a State. Id. That has little to do with

whether a state election official can accept two kinds of registration forms.

But more generally, accepting the argument would violate our system of

federalism in general and the division of authorities between federal and state

governments over election matters in particular. The Constitution itself envisions 17 different sets of rules for federal and state elections. Indeed, neither the Elections

Clause nor the Electors Clause gives Congress authority to regulate state election

procedures. This reflects the Supreme Court’s understanding as well. The Court has

made clear that “States retain the flexibility to design and use their own registration

forms” and that “[t]hese state-developed forms may require information the Federal

Form does not.” ITCA, 570 U.S. at 12. Nowhere did the Court suggest that the bare

existence of differences between the State and Federal Forms’ requirements could

give rise to an equal protection challenge. So this argument fails as a basis to

reconsider the stay on an expedited basis.

b. Irreparable Harm

To start with, the degree of irreparable harm that Intervenor-Appellants Toma

and Peterson (“Legislative Leaders”) must demonstrate to succeed is lessened

because of their high likelihood of success. When considering whether the party

seeking the stay will be irreparably harmed by the injunction, our court takes a

sliding-scale approach to the analysis. Nat. Res. Def. Council, Inc. v. Winter, 502

F.3d 859, 862 (9th Cir. 2007) (observing that the likelihood of success and

irreparable harm “represent two points on a sliding scale”). “[T]he required degree

of irreparable harm increases as the probability of success decreases.” Manrique v.

Kolc, 65 F.4th 1037, 1041 (9th Cir. 2023). The inverse is also true. With high

18 probabilities of success—as is the case here—the degree of irreparable harm that

must be shown is lower.

But under any standard, the irreparable harm to the Legislative Leaders is

obvious. By failing to stay the district court’s injunction with respect to § 16-

121.01(C), the Arizona Legislature, which the Legislative Leaders head, would

suffer irreparable harm by the non-enforcement of a constitutional legislative

enactment. Generally speaking, “any time a State is enjoined by a court from

effectuating statutes enacted by representatives of its people, it suffers a form of

irreparable injury.” New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S.

1345, 1351 (1977) (Rehnquist, J., in chambers) (emphasis added). When the

legislative act in question touches a prerogative that is “primarily the duty and

responsibility of the State” (such as regulating the manner of elections), “federal-

court review” of such “legislation represents a serious intrusion on the most vital of

local functions.” Abbott v. Perez, 585 U.S. 579, 603 (2018) (simplified). So long as

the enacted legislation is constitutional and within the authority of the legislature, an

“injunction[] barring the State from conducting this year’s elections pursuant to a

statute enacted by the Legislature . . . would seriously and irreparably harm the

State.” Id. at 602; see also Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts,

C.J., in chambers). That is the precise effect of the injunction here—it bars the State

19 from enforcing a statute enacted by the Arizona Legislature, meaning the Legislative

Leaders will suffer irreparable harm.

Plaintiffs-Appellees assert that the Legislative Leaders are not the State and

thus lack the authority to allege an irreparable harm to the State’s sovereign interests.

That’s not the case. Begin with state law. See Berger v. N.C. State Conf. of the

NAACP, 597 U.S. 179, 191 (2022) (explaining that courts must always respect “a

State’s chosen means of diffusing its sovereign powers among various branches and

officials”). Arizona law grants the Legislative Leaders authority to contest an

injunction suspending the Legislature’s enactments. See Ariz. Rev. Stat. § 12-1841.

Under the law, the Legislative Leaders are “entitled to be heard” in proceedings

implicating the constitutionality of a state law and “may intervene as a party” or “file

briefs in the matter. Id. § 12-1841(A), (D); see, e.g., Arizonans for Fair Elections v.

Hobbs, 335 F.R.D. 269, 274 (D. Ariz. 2020) (“[T]here is some force to the argument

that, at least under Arizona law, the House Speaker and Senate President possess a

unique stature that resembles that of the Attorney General[.]”); see also Ariz. State

Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 800 (2015)

(observing that the Arizona Legislature had Article III standing to seek redress for

injuries); Forty-Seventh Legislature v. Napolitano, 143 P.3d 1023, 1028 (Ariz. 2006)

(en banc) (“[T]he Legislature has alleged a direct institutional injury and has

standing”). Given all this, the Legislative Leaders may assert irreparable harm on

20 behalf of the State. At the very least, it would be surprising to hold in this truncated

proceeding—for the first time—that the Arizona House Speaker and Arizona Senate

President lack the ability to assert injury in federal cases on behalf of the State.

c. Public Interest/Balance of Equities

Finally, the joint balance-of-interests factor favors the Intervenor-Appellants.

It is well-established that “[s]tates have ‘an interest in protecting the integrity,

fairness, and efficiency of their ballots and election processes.’” Mi Familia Vota v.

Hobbs, 977 F.3d 948, 954 (9th Cir. 2020) (quoting Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 364 (1997)). Equally fundamental is “a state’s interest in

running its elections without judicial interference.” League of Women Voters of Fla.,

Inc. v. Fla. Sec’y of State, 32 F.4th 1363, 1372 (11th Cir. 2022) (citing Merrill v.

Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurral)). This interest is

strengthened by the Purcell doctrine, which “heightens the showing necessary . . . to

overcome the State’s extraordinarily strong interest in avoiding late, judicially

imposed changes to its election laws and procedures.” Merrill, 142 S. Ct. at 881

(Kavanaugh, J., concurral).

Plaintiffs-Appellees are quick to point out that Purcell cuts against Intervenor-

Appellants here because § 16-121.01(C) was not enforced before the district court’s

injunction. So, they claim, the stay of the injunction is what constitutes “late,

judicially imposed changes” to Arizona’s election laws and procedures. But this

21 argument backs into self-contradiction. If the status quo was the voluntary non-

enforcement of § 16-121.01(C) without any court order, then the partial stay of the

injunction doesn’t cause them any injury. It presumably would just return to the

status quo before the district court’s injunction.

But even so, Purcell does not help Plaintiffs-Appellees. As Justice Kavanaugh

observed, “[c]orrecting an erroneous lower court injunction of a state election law

does not itself constitute a Purcell problem.” Id. at 882 n.3. Indeed, the argument

to the contrary “defies common sense and would turn Purcell on its head.” DNC v.

Wis. State Legis., 141 S. Ct. 28, 31 (2020) (Kavanaugh, J., concurral). While we

give some deference to district courts, in our judicial system, we do not give them

the last word. Purcell thus doesn’t prevent us from correcting the district court’s

erroneous injunction.

And Plaintiffs-Appellees do not demonstrate a countervailing interest that

could challenge the State’s interest to protect the integrity of its elections free from

judicial interference. The district court found no “‘concrete evidence’ to corroborate

that [Arizona’s DPOC requirement] will in fact impede any qualified voter from

registering to vote or staying on the voter rolls,” Mi Familia Vota, 2024 WL 862406

at *49 (quoting Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 201 (2008)),

nor any evidence that Arizona’s election-law statutes “impose an excessive burden

on any specific subgroup of voters,” id. at *51.

22 The balance of interests favors Intervenor-Appellants.

IV. Conclusion

With the political nature of this case, we should be especially careful to avoid

the use of unconventional or disfavored procedures. In my mind, that concern alone

should have been enough to deny Plaintiffs-Appellees’ motion for reconsideration.

But even so, the motions panel got the answer right. Intervenor-Appellants make a

compelling showing of all the Nken factors, and so that panel’s partial stay of the

district court’s injunction should stand.

For these reasons, I respectfully dissent from the grant of the motion for

reconsideration.