
    Leslie FELDMAN; Luz Magallanes; Mercedez Hymes; Julio Morera; Cleo Ovalle; Peterson Zah, Former Chairman and First President of the Navajo Nation; The Democratic National Committee; DSCC, aka Democratic Senatorial Campaign Committee; The Arizona Democratic Party; Kirkpatrick for U.S. Senate; Hillary for America, Plaintiffs-Appellants, Bernie 2016, Inc., Intervenor-Plaintiff-Appellant, v. ARIZONA SECRETARY OF STATE’S OFFICE; Michele Reagan, in her official capacity as Secretary of State of Arizona; Maricopa County Board of Supervisors; Denny Barney; Steve Chucri; Andy Kunasek; Clint Hickman; Steve Gallardo, Member of the Maricopa County Board of Supervisors, in their official capacities; Maricopa County Recorder and Elections Department; Helen Purcell, in her official capacity as Maricopa County Recorder; Karen Osborne, in her official capacity as Maricopa County Elections Director; Mark Brnovich, in his official capacity as Arizona Attorney General, Defendants-Appellees, The Arizona Republican Party; Debbie Lesko; Tony Rivero; Bill Gates; Suzanne Klapp, Intervenor-Defendants-Appellees.
    No. 16-16865
    United States Court of Appeals, Ninth Circuit.
    Filed November 04, 2016
    Daniel Clayton Barr, Sarah Rae Gonski, Esq., Perkins Coie, Roopali H. Desai, David Andrew Gaona, Esq., Andrew S. Gordon, Esq., Coppersmith Broekelman PLC, Phoenix, AZ, Amanda Calíais, Marc Erik Elias, Elisabeth Frost, Bruce V. Spi-va, Perkins Coie LLP, Washington, DC, Joshua L, Kaul, Perkins Coie LLP, Madison, WI, for Plaintiffs-Appellants.
    Roopali H. Desai, David Andrew Gao-na, Esq., Andrew S. Gordon, Esq., Cop-persmith Broekelman PLC, Phoenix, AZ, Malcolm Seymour, III, Garvey Schubert Barer, New York, NY, for Interveno’r-Plaintiff-Appellant.
    Karen Hartman-Tellez, Kara Marie Karlson, Arizona Attorney General’s Office, for Defendants-Appellees Arizona Secretary of State’s Office, Michele Reagan, in her official capacity as Secretary of State of Arizona, and Mark Brnovich, in his official capacity as Arizona Attorney General.
    Colleen Connor, Andrea Lee Cummings, Joseph Isaac Vigil, Deputy County Attorney, Maricopa County Attorney’s 1 Office, for Defendants-Appellees Maricopa County Board of Supervisors, Denny Barney, Steve Chucri, Andy Kunasek, Clint Hickman, Steve Gallardo, member of the Mari-copa County Board of Supervisors, in their official capacities, Maricopa County Recorder and Elections Department, Helen Purcell, in her official capacity as Maricopa County Recorder, and Karen Osborne, in her official capacity as Maricopa County Elections Director.
    Sara J. Agne, Esquire, Colin Patrick Abler, Brett William Johnson, Snell & Wilmer L.L.P., Phoenix, AZ, for Intervenor-Defendants-Appellees.
    BEFORE: THOMAS, Chief Judge and O’SCANNLAIN, W. FLETCHER, RAWLINSON, CLIFTON, BYBEE, CALLAHAN, N. R. SMITH, MURGUIA, WATFORD, and OWENS, Circuit Judges.
   ORDER

PER CURIAM:

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, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam).

For further information or special requests regarding scheduling, please contact Deputy Clerk Paul Keller at pauL keller@ca9.uscourts.gov 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.

THOMAS, Chief Judge,

concurring in part, and dissenting in part, with whom W. FLETCHER, RAWLINSON, AND MURGUIA, Circuit Judges, join:

I agree that this appeal should be reheard en banc for the reasons stated in my dissent. Feldman v. Arizona Sec’y of State, 842 F.3d 613, 628-41, 2016 WL 6472060, at *10-21 (9th Cir. 2016) (Thomas, J., dissenting). The issues presented are important for both the present and future elections.

However, I would hold argument and decide the appeal prior to the certification of results for the present election. As I explained in my dissent, qualified voters have been, and will continue to be, disenfranchised by Arizona’s refusal to count legitimate ballots cast out-of-precinct. There is no reason why these legitimate votes should not be counted in this election, paiticularly when the votes are collected and available for election officials to tabulate.  