and Submitted October 3, 2018 San Francisco, California
from the United States District Court for the District of
Arizona No. 2:18-cv-02089-DLR, Douglas L. Rayes, District
Spencer G. Scharff (argued), Scharff PLC, Phoenix, Arizona;
Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix,
Arizona; for Plaintiff-Appellant.
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
Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and
Sandra S. Ikuta, Circuit Judges.
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.
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.
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.
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.
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.
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.
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).
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.
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
Rev. Stat. § 16-1005(H). Family members, household
members, and caregivers of the voter are exempted from this
general prohibition against collecting ballots. Id.
Knox has been a Democratic precinct committeeperson (an
elected position) for the Acacia Precinct since
2004. 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."
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."
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."
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
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."
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.
timely appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. 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).
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 ...