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16-16865 - Leslie Feldman, et al v. Arizona Sec'y of State's Ofc., et al


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16-16865 - Leslie Feldman, et al v. Arizona Sec'y of State's Ofc., et al
November 2, 2016
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FILED OPINION (SIDNEY R. THOMAS, CARLOS T. BEA and SANDRA S. IKUTA) AFFIRMED. Judge: SRT Dissenting, Judge: CTB Authoring, FILED AND ENTERED JUDGMENT. [10184244]
November 4, 2016
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Filed Order for PUBLICATION (SIDNEY R. THOMAS) Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. Judges Kozinski and McKeown did not participate in the deliberations or vote in this case. [10186081]
November 4, 2016
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Filed PER CURIAM Order for PUBLICATION (SIDNEY R. THOMAS, DIARMUID F. O'SCANNLAIN, WILLIAM A. FLETCHER, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, JAY S. BYBEE, CONSUELO M. CALLAHAN, N. RANDY SMITH, MARY H. MURGUIA, PAUL J. WATFORD and JOHN B. OWENS) (Chief Judge Thomas, concurring in part, dissenting in part) En banc oral argument will take place during the week of January 17, 2017, in San Francisco, California. The date and time will be determined by separate order. Plaintiffs’ motion for an injunction pending appeal is DENIED. In this action, plaintiffs challenge the provisions of Arizona law that precludes counting ballots that are cast outside of the voter’s designated precinct, even when those ballots include races and ballot measures for which the voter is eligible and qualified to vote. Plaintiffs argue that this procedure violates the Voting Rights Act of 1965, and the Fourteenth Amendment to the Constitution. The district court denied the plaintiffs’ request for a preliminary injunction. A divided three judge panel affirmed the district court’s order. A majority of the non-recused active judges then voted to rehear this case en banc. En banc argument will be confined to the question of whether or not a preliminary injunction should issue as to future elections. The en banc court will not consider whether or not out-of-precinct votes should be counted in the pending general election. Current Arizona election law, practices, and procedures as to out-of-precinct voting will be fully applicable to this election. The en banc court declines to issue any order that would potentially disrupt procedures in the upcoming election. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). For further information or special requests regarding scheduling, please contact Deputy Clerk Paul Keller at [email protected] or (206) 224-2236. Within seven days from the date of this order, the parties shall forward to the Clerk of Court twenty-five additional paper copies of the original briefs and twelve additional paper copies of the excerpts of record. The paper copies must be accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. A sample certificate is available at http://www.ca9.uscourts.gov/datastore/uploads/cmecf/Certificate-for-Brief-in-Paper-Format.pdf. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. [10187382]