Voter Confusion: Mi Familia Vota v. Hobbs

By Katie Giel.

On October 5, 2020, U.S. District Judge Logan ordered that the voter-registration deadline be extended 18 days to October 23. The ruling was immediately appealed to the Ninth Circuit, where it was stayed on October 13, ending the voter-registration period on October 15. Arizonans will probably recall this highly confusing period where articles continued circulating on social media about the lower court’s extension, even though the Ninth Circuit had already closed registration. The Ninth Circuit’s reasoning in this decision may illuminate how future cases about burdens on the right to vote will be evaluated.

  1. The Argument

Plaintiffs Mi Familia Vota and the Arizona Coalition for Change argued that the circumstances of 2020 make it so the original voter-registration deadline of October 5th would be burdensome to the exercise of First and Fourteenth Amendment rights. The Plaintiffs requested a deadline extension until October 27, 2020. In particular, the Plaintiffs alleged a violation of their First Amendment rights to engage in free speech and register voters, and further alleged that the government had violated their Fourteenth Amendment right to due process in depriving them of their First Amendment right. In response, the Defendants (the Secretary of State, the Republican National Committee, and the National Republican Senatorial Committee) argued that the extension would be a hardship to election officials and result in public confusion.

      2. The District Court Ruling

The District Court explained that violations of voter rights under the First and Fourteenth Amendments are evaluated with a balancing test, where the burden on voting rights is weighed against the state’s interest. In this case, the court weighed the state’s interest in not burdening its officials and having an orderly election against the pandemic-induced hurdles to registering to vote and the low voter registration numbers that the Plaintiffs proffered. Ultimately, the court found that voter confusion would be minimal, since voters who had already registered could disregard the new deadline and voters who are not registered are given more time. The court did note the Defendants’ concern that voters who requested early ballots could not receive and turn them in on time if they registered on the Plaintiff’s preferred deadline of October 27. As a result of the balancing test, the court issued a preliminary injunction that the deadline must be extended to October 13 so that the First and Fourteenth Amendment rights of the voters are properly balanced against the administrative needs of election officials.

      3. The Ninth Circuit Ruling

On October 12, the Defendants filed a notice of appeal and oral arguments were held that afternoon before a Ninth Circuit panel. In determining whether the injunction should be stayed, the court considered the four factors set forth in Nken v. Holder, which are (1) whether the stay applicant is likely to succeed on the merits, (2) whether the applicant will be irreparably injured without a stay, (3) whether a stay would substantially injure the other interested parties, and (4) the public interest.

On the first factor, the court found that the Defendants were likely to succeed on the merits because the Plaintiffs were only making an as-applied challenge, the deadline did not impose a severe burden that would trigger strict scrutiny, the administrative burdens of moving the deadline were substantial, and voter confusion is substantial when deadlines shift close to an election. The court reiterated the administrative burdens of extending the deadline in its consideration of harm to the Defendants. When considering harm to the Plaintiffs, the court simply noted that the October 5 deadline “as applied does not impose a severe burden.” On the last factor, the court found that the public’s interest was in an orderly election. As such, the court issued a stay to take effect two days later, on October 15.

      4. The Result for Arizonans

In his District Court opinion, Judge Logan opined that “[v]oter confusion undermines public trust in the electoral process, and it is highly important that [the Secretary of State] retains a sense of integrity in its procedures.” In the Ninth Circuit’s opinion, the court heavily considered the public’s interest in an orderly election and minimal voter confusion so close to Election Day. Ironically, this succession of decisions that unfolded in the courts was perhaps the most confusing aspect of the 2020 voter registration process. However, it is unknown what effect the voter confusion may have had on voter registration and turnout. Studies indicate that restrictions on voter registration and voting may do the most to suppress voter turnout. It is likely that the few extra days of registration, even if cut short unexpectedly, loosened the restrictions enough to slightly benefit turnout, perhaps outweighing any suppression caused by voter confusion.

Now, this case awaits a more robust decision before the Ninth Circuit. The court’s decision on the stay may shed some light on how the court will view harm to voters, burdens to election officials, and the public interest moving forward.

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