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Knox v. Brnovich

United States Court of Appeals, Ninth Circuit

October 31, 2018

Rivko Knox, Plaintiff-Appellant,
v.
Mark Brnovich, Attorney General, in his official capacity as Arizona Attorney General, Defendant-Appellee

          Argued and Submitted October 3, 2018 San Francisco, California

          Appeal from the United States District Court for the District of Arizona No. 2:18-cv-02089-DLR, Douglas L. Rayes, District Judge, Presiding

          Spencer G. Scharff (argued), Scharff PLC, Phoenix, Arizona; Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix, Arizona; for Plaintiff-Appellant.

          Andrew G. Pappas (argued), Assistant Solicitor General; Joseph E. La Rue and Kara M. Karlson, Assistant Attorneys General; Dominic E. Draye, Solicitor General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendant-Appellee.

          Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.

         SUMMARY [*]

         Civil Rights

         The panel affirmed the district court's denial of a preliminary injunction and its bench trial judgment in an action facially challenging HB 2023, Arizona's 2016 election law prohibiting certain persons from collecting voters' early mail ballots.

         Under HB 2023, a person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony. An election official, a United States postal service worker or any other person who is allowed by law to transmit United States mail is deemed not to have collected an early ballot if the official, worker or other person is engaged in official duties. Family members, household members, and caregivers of the voter are exempted from this general prohibition against collecting ballots.

         The panel held that HB 2023 is not preempted by federal laws regulating the United States Postal Service. The panel determined that the presumption against preemption applied in this instance because state regulation of early voting procedures was not "an area where there has been a history of significant federal presence," and that plaintiff failed to rebut this presumption.

         The panel held that HB 2023 does not implicate the First Amendment rights of ballot collectors like plaintiff. The panel determined that plaintiff failed to carry her burden of demonstrating that the conduct of collecting ballots would reasonably be understood by viewers as conveying any of plaintiff's expressive messages or conveying a symbolic message of any sort.

         Finally, the panel rejected plaintiff's claim that HB 2023 violates her right to due process under the Fifth Amendment because it is an overly vague criminal statute. The panel held that HB 2023 provides fair notice of prohibited conduct and that because the scope of HB 2023 was clear, it posed no significant threat of arbitrary enforcement.

          OPINION

          IKUTA, CIRCUIT JUDGE

         Rivko Knox brings a facial challenge to H.B. 2023, Arizona's 2016 election law prohibiting certain persons from collecting voters' early mail ballots. We conclude that H.B. 2023 is not preempted by federal laws regulating the United States Postal Service, does not violate the First Amendment's protection of speech, and is not an unconstitutionally vague criminal statute. Accordingly, we affirm.

         I

         Arizona law permits "[a]ny qualified elector" to "vote by early ballot," Ariz. Rev. Stat. § 16-541(A), in addition to voting in person on Election Day. Voters can either mail in early ballots or drop them off at an on-site early voting location in the 27 days leading up to an election. See id. § 16-542(D). Voters choosing to return their early ballots by mail need not pay any postage, but their ballots must be received by 7:00 p.m. on Election Day. Id. §§ 16-542(C), 16-548(A).

         Arizona has placed various restrictions on possession of early ballots. In 1992, Arizona prohibited any person other than the voter from possessing an unvoted absentee ballot. See 1991 Ariz. Legis. Serv. ch. 310, § 22 (S.B. 1390) (West). Arizona later extended this prohibition to unvoted early ballots of any type, see 1997 Ariz. Legis. Serv. ch. 5, § 18 (S.B. 1003) (West) (codified at Ariz. Rev. Stat. § 16-542(D)). In 2016, Arizona imposed restrictions on the collection of early ballots. Under H.B. 2023:

H. A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony. An election official, a United States postal service worker or any other person who is allowed by law to transmit United States mail is deemed not to have collected an early ballot if the official, worker or other person is engaged in official duties.

         Ariz. Rev. Stat. § 16-1005(H). Family members, household members, and caregivers of the voter are exempted from this general prohibition against collecting ballots. Id. § 16-1005(I).

         Rivko Knox has been a Democratic precinct committeeperson (an elected position) for the Acacia Precinct since 2004.[1] Knox engages in door-to-door canvassing of prospective voters to educate, register, and encourage them to vote. As part of her canvassing, Knox often encourages prospective voters to watch for their early ballot to arrive, to complete it, and to mail it back. Before the 2016 election cycle, Knox "accepted and delivered at least one voted ballot for a voter that [she] met while canvassing [prospective voters], and who requested that [she] deliver their early ballot."

         Knox states that "[a]ssisting voters with the delivery of their early ballots was, and continues to be, a part of expressing [her] political belief that all registered voters have an opportunity to use their franchise." Through the act of collecting and delivering individuals' voted early ballots, Knox intends to communicate the message that she "support[s] the continued and widespread use of voting by mail, and that the United States' postal system provides a secure and easy platform to exercise the franchise and conduct elections." Knox also intends her conduct to communicate the message that "voting is the most fundamental right in a democratic society and that [she is] committed to helping qualified electors exercise their right to vote regardless of who they vote for."

         Prior to the 2016 election cycle, Knox was willing to assist voters who asked her to deliver their voted early ballot to a United States mail receptacle or other appropriate ballot drop-off location. Since H.B. 2023 went into effect, she understands that she is "prohibited from collecting and delivering another person's early ballot." Knox is now "very careful not to offer to deliver or accept for delivery another person's early ballot, even if they ask for [her] assistance."

         After H.B. 2023 was enacted, Knox canvassed prospective voters for a candidate seeking election in the special election for Congressional District 8. During those efforts, Knox encountered several voters who had not yet mailed their early ballots. Knox felt compelled to "censor [herself] by not offering to collect and deliver" their early ballots. Instead, Knox encouraged them "not to place their ballots in the mail because it was too late and, instead, to deliver their ballots to an appropriate location before the polls closed."

         Knox plans to canvass prospective voters again in the upcoming 2018 election and would like to collect and deliver voted mail-in ballots, but fears doing so because of H.B. 2023 and the state's "threats to strictly enforce H.B. 2023." But for H.B. 2023, Knox "would affirmatively offer to deliver early ballots for voters . . . or, at a minimum, [] would be willing to oblige a voter who requested that [she] deliver his or her ballot."

         Knox filed this lawsuit in district court, claiming that H.B. 2023 is facially invalid because it: (1) was preempted by federal law under the Supremacy Clause; (2) violated speech rights protected by the First Amendment as applied to the states by the Fourteenth Amendment; and (3) was void for vagueness because of its failure to define when a person is deemed to have collected an early ballot in violation of the Due Process Clause. In her concurrent motion for a preliminary injunction, Knox asked the court for expedited relief and to consolidate the hearing on her motion for a preliminary injunction with a trial on the merits. See Fed. R. Civ. P. 65(a)(2). After holding a consolidated preliminary injunction hearing and bench trial, the district court denied Knox's motion for a preliminary injunction and ruled against her on all three of her claims.

         Knox timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.[2] We review the district court's conclusions of law de novo and review its findings of fact for clear error. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir. 2008) (en banc).

         II

         We begin with Knox's claim that H.B. 2023 is preempted by the federal postal monopoly, as set forth in the Private Express Statutes, a series of provisions establishing a monopoly for the U.S. Postal Service, 18 U.S.C. §§ 1693-1696; 39 U.S.C. §§ 401, 601-606, and their implementing regulations, 39 C.F.R. §§ 310, 320. To succeed on such a facial challenge, Knox "must show that 'no set of circumstances exists under which the [state] Act would be ...


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