The latest in Arizona v. Feldman, the fast moving case regarding Arizona’s absentee ballot harvesting law: today, the en banc Ninth Circuit ruled that the law prohibiting absentee ballot harvesting is not in effect for this election. The case will continue after the election, and the state could appeal to the Supreme Court for emergency action before the election.
There are many interesting issues debated by the judges in this decision. Notably, the five dissenting judges strongly lamented that the six judges in the majority ignored the Purcell principle by making such a change so close to the election:
The court misinterprets (and ultimately sidesteps) Purcell v. Gonzalez, 549 U.S. 1 (2006), to interfere with a duly established election procedure while voting is currently taking place, contrary to the Supreme Court’s command not to do so. I thus respectfully dissent from this order enjoining the state of Arizona from continuing to follow its own laws during an ongoing election. And let there be no mistake: despite the majority’s pretenses to the contrary, the order granting the injunction is a ruling on the merits, and one based on an unnecessarily hasty review and an unsubstantiated statutory and constitutional analysis. . . .
The majority recognizes the need to address Purcell and its progeny. But the majority’s strained attempt to distinguish those cases is unconvincing—its reasoning either misrepresents Purcell or is irrelevant to the issues at hand. And it misses the main point of Purcell: the closer to an election we get, the more unwarranted is court intrusion into the status quo of election law.