Wednesday, November 2, 2016

Ninth Circuit Fast-Tracks En Banc Review of Arizona Ban on Ballot Collection

A divided three-judge panel of the Ninth Circuit on Friday affirmed a district court's denial of a preliminary injunction against Arizona's law criminalizing the collection of early ballots. Today, the full Ninth Circuit agreed to rehear the case--just six days before the election.

Today's grant means that Friday's decision has no precedential value, and that the full Ninth Circuit will reconsider the matter itself.

The case challenges Arizona's 2016 law that criminalizes the collection of early ballots, with certain exceptions. This changed Arizona's earlier practice, which permitted individuals other than the voter to collect early ballots and submit them on behalf of the voter--a practice relied upon and favored by minority communities in the state, including Native American, Hispanic, and African American communities that, for different reasons, lack easy access to the polls.

Plaintiffs challenged the new law under the Voting Rights Act, the Equal Protection Clause, and the First Amendment. The district court ruled that they didn't show a likelihood of success on the merits and thus denied a preliminary injunction. A 2-1 panel of the Ninth Circuit affirmed on Friday. Then, today, the full court agreed to rehear the case.

But under Ninth Circuit rules, don't necessarily expect a reversal. As Judge Reinhardt explains in concurring with today's grant:

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. . . . The en banc court here is composed of a majority of judges who did not support the en banc call [and] it may be that its judgment will not reflect the view of the full court.

Judges O'Scannlain, Tallman, Callahan, Bea, and Ikuta dissented from the grant, arguing that just six days out from the election, the en banc court "risks present chaos and future confusion."

https://lawprofessors.typepad.com/conlaw/2016/11/ninth-circuit-fast-tracks-en-banc-review-of-arizona-ban-on-ballot-collection.html

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Comments

Is it normal for a circuit to grant en banc review of a denial of a preliminary injunction?
It is just a preliminary decision to not do anything; the court which decided it will itself revisit the matter in a hearing for a permanent injunction.

This would sort of be an argument against any appeal of a denial of preliminary injunction, although a regular appeal is more "regular," so I hear the argument for it more. Whereas I think of en banc as more extraordinary.

Posted by: Biff | Nov 14, 2016 5:08:31 PM

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