Mi Familia Vota v. Hobbs, No. 20-16932 (9th Cir. 2020)Annotate this Case
The Ninth Circuit granted a prospective stay of the district court's preliminary injunction enjoining the Secretary's enforcement of the October 5, 2020 deadline prescribed in Ariz. Rev. Stat. 16-120(A), where the district court held that it was unconstitutional as applied during the COVID-19 pandemic. The injunction extended the registration deadline by 18 days to October 23, 2020, and ordered that anyone registering by that date be allowed to vote in the November 3 election.
The panel applied the Nken factors to determine whether to grant a stay pending appeal, holding that there is a sufficiently high likelihood of success on appeal where there has been no facial challenge to the statutory registration deadline; the statutory deadline does not impose a "severe burden" on plaintiffs' asserted rights and does not trigger strict scrutiny; the administrative burdens on the state imposed by an October 23 registration deadline are significant; and, even if the burden on voter registration were greater and the burden on the government less, plaintiffs' extremely late filing relative to the deadline is a factor supporting the government's likelihood of success on the merits. Finally, the remaining factors governing issuance of a stay also weigh in the Secretary's favor.
The panel granted the Secretary's specific request for a prospective stay, with a two-day grace period. In this case, the Secretary maintains that a retroactive stay would be unfair and might cause irreparable harm to Arizona's voters and damage the public interest. Furthermore, a retroactive stay would replicate some of the injuries that the injunction itself produced, and a retrospective stay would be problematic given that early voting has begun; the Supreme Court has recently employed the remedy of a prospective stay in similar election law cases; and the Supreme Court's election law jurisprudence counsels for deference to politically accountable state officials charged with the responsibility for conducting elections.