Darlene Yazzie; Caroline Begay; Leslie Begay; Irene Roy; Donna Williams; Alfred Mcroye v. KATIE HOBBS, in her official capacity as Secretary of State for the State of Arizona

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DARLENE YAZZIE; CAROLINE
BEGAY; LESLIE BEGAY; IRENE ROY;
DONNA WILLIAMS; ALFRED
MCROYE,
Plaintiffs-Appellants,

v.

K
ATIE HOBBS, in her official
capacity as Secretary of State for the
State of Arizona,
Defendant-Appellee.
No. 20-16890

D.C. No.
3:20-cv-08222-
GMS

OPINION

Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted October 13, 2020
San Francisco, California

Filed October 15, 2020

2 YAZZIE V. HOBBS

Before: M. Margaret McKeown and Jacqueline H.
Nguyen, Circuit Judges, and Robert H. Whaley,
*

District Judge.

Per Curiam Opinion

SUMMARY
**

Civil Rights

The panel affirmed the district court’s denial of
plaintiffs’ request for a preliminary injunction in an action
brought by six members of the Navajo Nation challenging
Arizona’s mail ballot deadline, which provides that mail
ballots must be received by the county recorder or other
officer in charge of elections or deposited at any polling
place in the county no later than 7:00 p.m. on election day.

According to the Complaint, Navajo Nation reservation
residents face myriad challenges to voting by mail, including
not having home mail service, and difficulties getting to the
post office. In early September 2020, plaintiffs moved for a
mandatory preliminary injunction that would require
Arizona to count mail ballots from on-reservation Navajo
Nation tribal members that are postmarked—rather than
received—by election day, November 3, 2020, and received
on or before November 13, 2020. The district court denied

*
The Honorable Robert H. Whaley, United States District Judge for
the Eastern District of Washington, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

YAZZIE V. HOBBS 3

the motion for a preliminary injunction based on its finding
that plaintiffs did not demonstrate a likelihood of success on
the merits or raise serious questions going to the merits of
plaintiffs’ Voting Rights Act (“VRA”) claim.

The panel did not address the district court’s analysis of
the VRA claim because it concluded that plaintiffs lacked
standing. The panel determined that plaintiffs failed to make
a clear showing of a concrete and particularized injury. The
panel noted that this case was not a putative class action filed
on behalf of the Navajo Nation members who reside on the
reservation. Rather it was brought in the name of six
individuals. The Navajo Nation had in fact distanced itself
from the suit. The panel stated that a plaintiff bringing a
claim under Section 2 of the VRA must allege a particular
and concrete injury; it was not enough, as plaintiffs did, to
simply speculate that the receipt deadline would be a
difficult burden on them. What was missing was any
allegation or showing as to, at a bare minimum, whether any
of the plaintiffs intended to vote in this general election, and
if so, whether they intended to vote by mail.

The panel further held that even if it overlooked these
pleading gaps and deemed the allegations concerning the
desire to participate in elections equally as an injury
sufficient to meet the first prong of constitutional standing,
also missing was a clear showing that the alleged injury was
redressable by a favorable decision by this court.

Crucially, the postmark deadline could not be
implemented because the mail ballots received and logged
by the county recorder do not indicate—and plaintiffs
provided no way to otherwise discern—whether those
ballots were cast by on-reservation Navajo Nation members.
Another practical hurdle undermining redressability was that

4 YAZZIE V. HOBBS

the U.S. Postal Service has not habitually postmarked mail-
in ballots. But even if a mandatory injunction would prompt
the Postal Service to attempt to postmark all mail ballots for
this election, plaintiffs’ relief would still depend on the act
of a third party who would not be controlled or bound by a
favorable ruling of this court. Hence, imposing one deadline
for general voters and another for members of Navajo
Nation’s on-reservation voters, who cannot be readily
identified, imposed not only a significant administrative
burden on Arizona’s ability to carry out a general election in
the midst of the COVID-19 pandemic, but also a
redressability hurdle that could not be cleared with a
favorable court ruling.

COUNSEL

Steven D. Sandven (argued), Steven D. Sandven PC, Hill
City, South Dakota, for Plaintiffs-Appellants.

Roopali H. Desai (argued), D. Andrew Gaona, and Kristen
Yost, Coppersmith Brockelman PLC, Phoenix, Arizona;
Marty Harper and Anuradha Sivaram, ASU Law Group,
Phoenix, Arizona; for Defendant-Appellee.

Michael Donofrio (argued), Stris & Maher LLP, Montpelier,
Vermont; Celina Stewart and Maureen Edobor, League of
Women Voters, Washington, D.C.; for Amicus Curiae
League of Women Voters of Arizona.

YAZZIE V. HOBBS 5

OPINION
PER CURIAM:
This appeal in a pre-election challenge to Arizona’s mail
ballot deadline comes to us just three weeks before this
year’s general election. Early voting in Arizona began about
a week ago on October 7, 2020. On the same date, Arizona
started mailing ballots to voters on the permanent early
voting list. Others who wish to vote by mail must request a
mail ballot by October 23, 2020.
1
Arizona law provides that
mail ballots “must be received by the county recorder or
other officer in charge of elections or deposited at any
polling place in the county no later than 7:00 p.m. on election
day,” which this year is November 3, 2020 (“Receipt
Deadline”). Ariz. Rev. Stat. § 16-548(A). This Receipt
Deadline is at the heart of this appeal.
In late August 2020, six members of the Navajo Nation
who reside on the reservation in Apache County, Arizona—
Darlene Yazzie, Caroline Begay, Leslie Begay, Irene Roy,
Donna Williams, and Alfred McRoye (collectively,
“Yazzie”)—initiated an action challenging Arizona’s
Receipt Deadline pursuant to Section 2 of the Voting Rights
Act of 1965 (“VRA”), see 52 U.S.C. § 10301, the Equal

1
Pursuant to an order from our court, Arizona has changed the
deadline for voter registration for this year’s general election to
11:59 p.m. on October 15, 2020. See Mi Familia Vota v. Hobbs, No. 20-
16932, Slip Op. at 13 (9th Cir. Oct. 13, 2020). This revised deadline to
register to vote does not change the deadline to request a ballot by mail,
which remains at 5:00 p.m. on October 23, 2020.

6 YAZZIE V. HOBBS

Protection Clause of the United States Constitution, and the
Arizona Constitution’s election clause.
2

According to the Complaint, Navajo Nation reservation
residents face myriad challenges to voting by mail. Many
on-reservation members do not have home mail service; to
receive or send mail, they must travel to a post office. This
trip is often long and requires traversing rough terrain and
stretches of unpaved roads. Added to this challenge are the
socioeconomic factors, educational disadvantages, and
language barriers that make both the travel to the post
office—which requires access to a car—and the completion
of mail ballots difficult. Even after these obstacles are
overcome and the ballots are mailed, Yazzie claims that
these mail ballots take disproportionately longer to reach the
county recorder’s office because of the slower mail service
on the reservation.
In early September 2020, Yazzie moved for a mandatory
preliminary injunction that would require Arizona to count
mail ballots from on-reservation Navajo Nation tribal
members that are postmarked—rather than received—by
election day, November 3, 2020, and received on or before
November 13, 2020 (“Postmark Deadline”). After an
evidentiary hearing, the district court denied, in late
September 2020, the motion for preliminary injunction
based on its finding that Yazzie did not demonstrate a
likelihood of success on the merits or raise serious questions
going to the merits of Yazzie’s VRA claim. See Winter v.

2
The federal and state constitutional claims are not addressed in
Yazzie’s opening brief and are thus waived. See Ind. Towers of Wash.
v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not
consider any claims that were not actually argued in appellant’s opening
brief.”).

YAZZIE V. HOBBS 7

Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Disney
Enters. Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir.
2017).
We do not address the district court’s analysis of the
VRA claim because we conclude that Yazzie and the other
plaintiffs lack standing. See Equity Lifestyle Props., Inc. v.
Cnty. of San Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir.
2008) (“The jurisdictional question of standing precedes,
and does not require, analysis of the merits.”). Because
standing is a threshold issue, we consider whether Yazzie
has “demonstrate[d] standing . . . for [the] form of relief that
is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724,
734 (2008) (internal quotation marks and citations omitted).
At this preliminary injunction stage, Yazzie “must make a
clear showing of each element of standing,” proving (1) an
injury in fact that is “concrete and particularized” and
“actual or imminent”; (2) “a causal connection between the
injury and the conduct complained of”; and that (3) “the
injury will likely be redressed by a favorable decision.”
Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013); see
Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (citing
Winter, 555 U.S. at 22) (a “clear showing” of injury-in-fact
is required at the preliminary injunction stage).
Not only does Yazzie fail to make a clear showing of a
concrete and particularized injury, noticeably absent in the
record is any particularized allegation with respect to any of
the six individual plaintiffs. Importantly, this case is not a
putative class action filed on behalf of the Navajo Nation
members who reside on the reservation; it is brought in the
name of six individuals. The Navajo Nation has in fact
distanced itself from the suit. It sent Yazzie’s counsel a letter
emphasizing that the Nation is not a party to the lawsuit, such
that Yazzie had misstated that “[t]he Navajo Nation files

8 YAZZIE V. HOBBS

lawsuit over mail-in ballot counting.” Hence, for this court
to have jurisdiction over this preliminary injunction appeal,
Yazzie must establish injury-in-fact for at least one of the
individual plaintiffs in this lawsuit.
3
Yazzie fails to do so.
The Complaint alleges a general “desire to participate in
the electoral and political processes of Arizona on an equal
basis with non-Indian voters.” But this kind of general intent
to decide, “at some point,” to cast a ballot in a particular way
that may disenfranchise them “epitomizes speculative
injury.” Townley, 722 F.3d at 1133. A plaintiff bringing a
claim under Section 2 of the VRA must allege a particular
and concrete injury; it is not enough, as Yazzie does here, to
simply “speculate” that the Receipt Deadline “would be . . .
a difficult burden on them.” See Farrakhan v. Washington,
338 F.3d 1009, 1022 (9th Cir. 2003) (internal quotation
marks omitted).
What is missing for Yazzie is any allegation or showing
as to, at a bare minimum, whether any of the plaintiffs intend
to vote in this general election, and if so, whether they intend
to vote by mail. Nor does Yazzie allege whether the
plaintiffs are on the rolls for automatic receipt of an early
ballot or whether they face the challenges in terms of
location or other claimed disabling factors, such as “the
COVID-19 pandemic and the United States Postal Service
. . . reorganizational issues” with respect to the Receipt
Deadline. While the Complaint is replete with general
allegations concerning the various hardships the Navajo

3
Because Yazzie is seeking injunctive relief, “this court need not
address standing of each plaintiff if it concludes that one plaintiff has
standing.” Nat’l Ass’n of Optometrists & Opticians LensCrafters, Inc.
v. Brown, 567 F.3d 521, 523 (9th Cir. 2009). Here, none of the plaintiffs
have shown standing.

YAZZIE V. HOBBS 9

Nation members who live on the reservation generally face
with respect to mail voting, nothing in the record says
whether Yazzie and her fellow plaintiffs have experienced
“lack of home mail delivery, the need for language
translation, lack of access to public transportation and lack
of access to any vehicle” such that the Receipt Deadline will
harm their ability to vote in this election. See Dillard v.
Chilton Cty. Comm’n, 495 F.3d 1324, 1333 (11th Cir. 2007)
(no injury in fact for VRA claim where the allegation was
“an undifferentiated harm suffered in common by all citizens
of the county”). The failure to plead—much less make a
clear showing of—concrete and particularized injury is
enough to doom Yazzie’s standing.
But even if we could overlook these pleading gaps and
deem the allegations concerning the desire to participate in
elections equally as an injury sufficient to meet the first
prong of constitutional standing, also missing is a clear
showing that the alleged injury is redressable by a favorable
decision by this court. If we are “unable to grant the relief
that relates to the harm, the plaintiff lacks standing.”
Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982).
This redressability requirement presents an insuperable
standing hurdle for Yazzie.
To demonstrate redressability, Yazzie must show “a
substantial likelihood that the requested relief will remedy
the alleged injury in fact.” Vt. Agency of Nat. Res. v. U.S. ex
rel. Stevens, 529 U.S. 765, 771 (2000) (internal quotation
marks and citation omitted). But the record reflects, without
countervailing evidence from Yazzie, that the requested
relief—a modified voting schedule solely for on-reservation
Navajo Nation members—cannot redress the claimed injury,
at least for this election. Crucially, the Postmark Deadline
cannot be implemented because the mail ballots received and

10 YAZZIE V. HOBBS

logged by the county recorder do not indicate—and Yazzie
provides no way to otherwise discern—whether those ballots
were cast by on-reservation Navajo Nation members. The
infeasibility of a Postmark Deadline for only certain tribal
members gets at “the very essence of the redressability
requirement” because “[r]elief that does not remedy the
injury suffered cannot bootstrap a plaintiff into federal
court.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
107 (1998).
Yazzie claims that three Arizona counties, Apache,
Navajo, and Coconino, are implicated because these
counties comprise the Navajo Nation reservation in Arizona.
Even assuming that it is possible to tell whether a given mail
ballot originated from the reservation and not somewhere
else in the precinct, the record does not indicate how to tell
whether the ballot was cast by an enrolled member of the
Navajo Nation. Not everyone who resides on the reservation
is a Navajo; non-minority voters also reside on the
reservation. And not every Navajo living on the reservation
is an enrolled member of the Navajo Nation. Yazzie does
not explain how the county recorders can trace the mail
ballots to on-reservation Navajo Nation members.
According to the testimony of Sambo Dul, Arizona’s
Elections Director, the county recorders cannot “effectively
differentiate between the ballots from Navajo voters who
live on the reservation versus everyone else’s ballots.” A
voter’s ethnic identity or tribal membership is not on the face
of the ballot or readily available from the voter’s registration
record.

YAZZIE V. HOBBS 11

Another practical hurdle undermining redressability is
that the U.S. Postal Service has “not habitually postmark[ed]
mail-in ballots,” according to Patty Hansen, the Coconino
County Recorder. Even Yazzie’s experts candidly observed
that “mail is not always date-stamped with the day and time
that it is actually posted.” We are aware that the Southern
District of New York issued a preliminary injunction with
respect to the U.S. Postal Service and ballots. Jones v. U.S.
Postal Serv., 2020 WL 5627002, at *28–29 (S.D.N.Y. Sept.
21, 2020). As an adjunct to that injunction, the court
approved the proposed Guidance Memorandum in which the
Postal Service committed to having “[a]ll identifiable ballots
returned by voters . . . be ‘cancelled’ or ‘postmarked,’
regardless of the method of payment of postage used . . . to
ensure all collected ballots are processed timely.”
4
But even
if the mandatory injunction will prompt the Postal Service to
attempt to postmark all mail ballots for this election,
Yazzie’s relief will still depend on the act of a third party
who is not controlled or bound by a favorable ruling of this
court. See Novak v. United States, 795 F.3d 1012, 1020 (9th
Cir. 2015) (“There is no standing if, following a favorable
decision, whether the injury would be redressed would still
depend on the unfettered choices made by independent
actors not before the courts.” (internal quotation marks and
citation omitted)). The U.S. Postal Service is not a party to
this suit.
Hence, imposing one deadline for general voters and
another for members of Navajo Nation’s on-reservation
voters, who cannot be readily identified, imposes not only a

4
Exhibit A to Letter addressed to Judge Victor Marrero at 1, Jones
v. U.S. Postal Serv., No. 20 Civ. 6516 (S.D.N.Y. Oct. 9, 2020), ECF No.
83-1; Id. (order approving the proposed Guidance Memorandum), ECF
No. 84.

12 YAZZIE V. HOBBS

“significant administrative burden” on Arizona’s ability to
carry out a general election in the midst of the COVID-19
pandemic, but also a redressability hurdle that cannot be
cleared with a favorable court ruling. See Ry. Labor Execs.
Ass’n v. Dole, 760 F.2d 1021, 1023 (9th Cir. 1985)
(“Redressability . . . requires the court to examine whether
the court has the power to right or to prevent the claimed
injury.” (internal quotation marks and citation omitted)).
While we are sympathetic to the claimed challenges that
on-reservation Navajo Nation members face in voting by
mail, we lack jurisdiction because Yazzie and the other
individual plaintiffs do not satisfy “the irreducible
constitutional minimum of standing.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992).
Though a distinct doctrine, Purcell concerns also
resonate through the standing infirmities in this case. See
Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (noting that
court orders close to the election “can themselves result in
voter confusion and consequent incentive to remain away
from the polls”). Although we do not discourage challenges
to voting laws that may be discriminatory or otherwise
invalid, whenever they may arise, we are mindful that the
Supreme Court “has repeatedly emphasized that lower
federal courts should ordinarily not alter the election rules
on the eve of an election.” Republican Nat’l Comm. v.
Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020). The
Arizona statute setting election day as the deadline for
receipt of ballots has been in effect since 1997. Ariz. Laws
1997, 2d Spec. Sess. Ch. 5 (S.B. 1003). Dismissal of this
last-minute challenge to a decades-old rule should be fair
notice to plaintiffs who want to tackle the deadline in the

YAZZIE V. HOBBS 13

future. Accordingly, we affirm the district court’s denial of
Yazzie’s request for a preliminary injunction.
5

AFFIRMED.

5
Even though the district court has not ruled on standing, “we must
consider it because it governs our jurisdiction as well.” City of S. Lake
Tahoe v. Cal. Tahoe Reg’l Plan. Agency, 625 F.2d 231, 233 (9th Cir.
1980). Because “the judgment of the district court may be affirmed on
grounds other than those relied on by the district court,” we affirm the
district court based on standing. Indus. Risk Insurers v. Creole Prod.
Servs., Inc., 746 F.2d 526, 527 n.1 (9th Cir. 1984).