No. ____

In the
Supreme Court of the United States
MARK BRNOVICH, IN HIS OFFICIAL CAPACITY AS
ARIZONA ATTORNEY GENERAL, ET AL.,
Petitioners,
v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.,
Respondents.
On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI
MICHAEL W. MCCONNELL MARK BRNOVICH
STEFFEN N. JOHNSON
Attorney General
WILSON SONSINI
GOODRICH & ROSATI, PC ORAMEL H. (O.H.) SKINNER
1700 K Street, N.W.
Solicitor General
Washington, D.C. 20006
Counsel of Record
(202) 973-8800
RUSTY D. CRANDELL
Deputy Solicitor General
JOSEPH A. KANEFIELD
KATE B. SAWYER
Chief Deputy and
Assistant Solicitor General
Chief of Staff
JENNIFER J. WRIGHT
BRUNN W. ROYSDEN III
KATLYN J. DIVIS
Division Chief
Assistant Attorneys General
OFFICE OF THE ARIZONA
OFFICE OF THE ARIZONA
ATTORNEY GENERAL
ATTORNEY GENERAL
2005 N. Central Ave.
Phoenix, AZ 85004
(602) 542-5025
o.h.skinner@azag.gov
Counsel for Petitioners

 i
QUESTIONS PRESENTED
Arizona, like every other State, has adopted rules
to promote the order and integrity of its elections. At
issue here are two such provisions: an “out-ofprecinct policy,” which does not count provisional
ballots cast in person on Election Day outside of the
voter’s designated precinct, and a “ballot-collection
law,” known as H.B. 2023, which permits only certain persons (i.e., family and household members,
caregivers, mail carriers, and elections officials) to
handle another person’s completed early ballot. A
majority of States require in-precinct voting, and
about twenty States limit ballot collection.
After a ten-day trial, the district court upheld these
provisions against claims under Section 2 of the Voting Rights Act and the Fifteenth Amendment. A
Ninth Circuit panel affirmed. At the en banc stage,
however, the Ninth Circuit reversed—against the
urging of the United States and over two vigorous
dissents joined by four judges.
The questions presented are:
1.

Does Arizona’s out-of-precinct policy violate
Section 2 of the Voting Rights Act?

2.

Does Arizona’s ballot-collection law violate
Section 2 of the Voting Rights Act or the Fifteenth Amendment?

 ii
PARTIES TO THE PROCEEDINGS
Petitioners are Mark Brnovich, in his official capacity as Arizona Attorney General, and the State of Arizona.
Respondents are The Democratic National Committee; DSCC, aka Democratic Senatorial Campaign
Committee; The Arizona Democratic Party; The Arizona Republican Party; Bill Gates; Suzanne Klapp;
Debbie Lesko; Tony Rivero; and Katie Hobbs, in her
official capacity as Secretary of State of Arizona.
STATEMENT OF RELATED PROCEEDINGS
United States District Court (D. Ariz.):
Feldman, et al., v. Arizona Secretary of State’s Office, et al., No. 16-cv-01065 (May 8, 2018) (judgment entered)
United States Court of Appeals (9th Cir.):
Feldman, et al., v. Arizona Secretary of State’s Office, et al., No. 16-16698 (June 1, 2018) (judgment
entered)
Feldman, et al., v. Arizona Secretary of State’s Office, et al., No. 16-16865 (June 1, 2018) (judgment
entered)
DNC, et al., v. Hobbs, et al., No. 18-15845 (January
27, 2020) (judgment entered)
Supreme Court of the United States:
Arizona Secretary of State’s Office, et al., v. Feldman, et al., No. 16A460 (November 5, 2016)
(judgment entered)

 iii
TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDINGS ......................... ii
STATEMENT OF RELATED PROCEEDINGS........ ii
TABLE OF AUTHORITIES ..................................... vii
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................1
CONSTITUTIONAL AND
STATUTORY
PROVISIONS INVOLVED .........................................1
INTRODUCTION ........................................................2
STATEMENT ..............................................................4
A. Arizona’s voter-friendly electoral
system .........................................................4
B. Section 2 of the Voting Rights Act .............4
C. The DNC’s challenge to Arizona’s
third-party ballot collection and outof-precinct voting rules ..............................5
D. Ninth Circuit en banc preliminary
injunction and this Court’s stay ................8
E. The district court’s ten-day trial................8
F. Ninth Circuit merits proceedings ............11
REASONS FOR GRANTING THE PETITION .......13
I. The Decision Below Raises Questions Of
Exceptional Importance Concerning The
Right To Vote And The Integrity Of
Elections ..........................................................14
A. Invalidation of the commonsense
voting
measures
here
raises
important
questions
warranting
review .......................................................15
1. Arizona’s out-of-precinct policy ...........15

 iv
TABLE OF CONTENTS—Continued
2. Arizona’s ballot-collection law .............17
3. The imputation of racial bias ..............20
B. The
majority’s
statutory
and
constitutional analysis threatens
innumerable laws nationwide and
conflicts with Section 2 itself ...................21
1. The majority’s Section 2 results
test analysis .........................................21
2. The
majority’s
discriminatory
intent analysis .....................................24
II. Lacking This Court’s Guidance, The
Circuits Are Deeply Divided Over How To
Determine
If
Laws
Impose
A
“Discriminatory Burden” Under Section 2.....26
A. Four circuits have held that a
disparate impact is insufficient to
show an unlawful discriminatory
burden
absent
proof
of
less
opportunity to vote ...................................27
B. In the Ninth Circuit, anything more
than a de minimis disparity
establishes a discriminatory burden .......31
C. The Ninth Circuit’s view is in accord
with older Fourth and Sixth Circuit
precedent ..................................................32
III. This Case Is An Ideal Vehicle To Address
The Meaning Of Section 2 And The
Requirements
Of
The
Fifteenth
Amendment .....................................................34
CONCLUSION ..........................................................35

 v
APPENDIX
Appendix A

En Banc and Dissenting
Opinions in the United States
Court of Appeals for the Ninth
Circuit
(January 27, 2020) ................... App. 1

Appendix B

Opinion
and
Dissenting
Opinion in the United States
Court of Appeals for the Ninth
Circuit
(September 12, 2018) ........... App. 256

Appendix C

Amended Findings of Fact and
Conclusions of Law in the
United States District Court
for the District of Arizona
(May 10, 2018) ..................... App. 389

Appendix D

Judgment in a Civil Case in
the United States District
Court for the District of
Arizona
(May 8, 2018) ....................... App. 507

Appendix E

Order in a Civil Case in the
United States District Court
for the District of Arizona
(May 8, 2018) ....................... App. 509

Appendix F

Constitutional and Statutory
Provisions Involved ............. App. 541

Appendix G

Brief for the United States as
Amicus Curiae in Support of
Appellees on Rehearing En
Banc
and
Supporting
Affirmance in the United
States Court of Appeals for
the
Ninth
Circuit
(February 15, 2019) ............. App. 550

 vi
Appendix H

Defendant-Appellee Arizona
Attorney
General
Mark
Brnovich’s Motion to Take
Judicial Notice in the United
States Court of Appeals for
the
Ninth
Circuit
(March 14, 2019) .................. App. 581
Exhibit A to Motion - North
Carolina State Board of
Elections’ March 13, 2019
Order in In re Investigation of
Election Regularities Affecting
Counties Within the 9th
Congressional District ......... App. 586

Appendix I

Excerpts
from
Arizona
Election Procedures Manual
(June 2014) .......................... App. 631

Appendix J

Order in the United States
Court of Appeals for the Ninth
Circuit
(February 11, 2020) ............. App. 636

Appendix K

Order in the United States
Court of Appeals for the Ninth
Circuit
(April 9, 2020) ...................... App. 638

 vii
CASES

TABLE OF AUTHORITIES

Abbott v. Veasey,
137 S. Ct. 612 (2017) .............................................35
Alaska v. Arctic Maid,
366 U.S. 199 (1961) ...............................................15
Anderson v. Bessemer City,
470 U.S. 564 (1985) ...............................................26
Arizona Secretary of State’s Office v. Feldman,
137 S. Ct. 446 (2016) ...............................................8
Burdick v. Takushi,
504 U.S. 428 (1992) ...............................................14
City of Mobile v. Bolden,
446 U.S. 55 (1980) ...................................................4
Cooper v. Harris,
137 S. Ct. 1455 (2017) ...........................................25
Crawford v. Marion County Elections Board,
553 U.S. 181 (2008) ................................... 19, 24, 25
Feldman v. Arizona Secretary of State’s Office,
843 F.3d 366 (9th Cir. 2016) ...................................8
Frank v. Walker,
768 F.3d 744 (7th Cir. 2014) ............... 21, 26, 28, 32
Hunt v. Cromartie,
526 U.S. 541 (1999) ...............................................25
League of Women Voters v. North Carolina,
769 F.3d 224 (4th Cir. 2014) ........................... 32, 33
Lee v. Virginia State Board of Elections,
843 F.3d 592 (4th Cir. 2016) ..................... 22, 28, 29
McGee v. International Life Insurance Company,
355 U.S. 220 (1957) ...............................................15

 viii
TABLE OF AUTHORITIES—Continued
Michigan State A. Philip Randolph Inst. v. Johnson,
No. 18-1910, Dkt. 30, 36-2
(6th Cir. Jan. 14, 2019) .........................................34
Michigan State A. Philip Randolph Inst. v. Johnson,
833 F.3d 656 (6th Cir. 2016) .................................33
Miller v. Picacho Elementary School District No. 33,
877 P.2d 277 (Ariz. 1994) .................................. 7, 18
Munro v. Socialist Workers Party,
479 U.S. 189 (1986) ...............................................24
North Carolina v. North Carolina NAACP,
137 S. Ct. 1399 (2017) ...........................................34
Northeast Ohio Coalition for the Homeless v. Husted,
837 F.3d 612 (6th Cir. 2016) .................................26
Ohio Democratic Party v. Husted,
834 F.3d 620 (6th Cir. 2016) ......................... passim
Pullman-Standard v. Swint,
456 U.S. 273 (1982) ...............................................26
Sandusky County Democratic Party v. Blackwell,
387 F.3d 565 (6th Cir. 2004) ........................... 16, 17
Shelby County v. Holder,
570 U.S. 529 (2013) ......................................... 13, 20
Simmons v. Galvin,
575 F.3d 24 (1st Cir. 2009) ....................................27
Thornburg v. Gingles,
478 U.S. 30 (1986) ........................................... 20, 22
United States v. O’Brien,
391 U.S. 367 (1968) ...............................................25
Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016) ......................... passim
Veasey v. Abbott,
888 F.3d 792 (5th Cir. 2018) .................................34

 ix
TABLE OF AUTHORITIES—CONTINUED
CONSTITUTIONAL PROVISIONS
Ariz. Const. art. VII, § 1 ............................................18
STATUTES
52 U.S.C. § 10301 ...................................... 5, 17, 22, 31
A.R.S. § 16-122 ............................................................6
A.R.S. § 16-135 ............................................................6
A.R.S. § 16-452 ............................................................6
A.R.S. § 16-542 ............................................................6
A.R.S. § 16-584 ............................................................6
A.R.S. § 16-1005 .................................................... 7, 18
Pub. L. No. 97−205, 96 Stat. 131 (1982) ...................22
OTHER AUTHORITIES
Report of the Commission on Federal Election
Reform (2005) .............................................. 7, 18, 19
Michael J. Pitts, Rethinking Section 2 Vote Denial,
46 Fla. St. U. L. Rev. 1 (2018) ...............................26
Hasen & Crum, Crum: The Fifteenth Amendment
and DNC v. Hobbs, Election L. Blog (Jan. 31,
2020), https://electionlawblog.org/?p=109188.......20
S. REP. NO. 97–417 (1982) ..................................... 5, 22
Stephen M. Shapiro et al., Supreme Court Practice
(11th ed. 2019) .......................................................15

 1
OPINIONS BELOW
The en banc opinion is reported at 948 F.3d 989.
App. 1-255. The vacated panel opinion is reported at
904 F.3d 686. App. 256-388. The district court opinion is reported at 329 F. Supp. 3d 824. App. 389-506.
JURISDICTION
The court of appeals’ judgment was entered on
January 27, 2020. This Court has jurisdiction under
28 U.S.C. § 1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The relevant provisions (U.S. Const. amend. XV;
52 U.S.C. § 10301 (2018); and Ariz. Rev. Stat. Ann.
(A.R.S.) §§ 16-122, 16-135, 16-452, 16-584, and 161005(H), (I) (West 2015 & Supp. 2019)) are reproduced in the appendix to this petition (App. 541549). 1

All statutes quoted in the appendix are current versions.
A.R.S. §§ 16-584 and 16-452 are the only statutes that have
changed since this lawsuit was initiated, and the changes are
not material to the questions presented here.
1

 2
INTRODUCTION
The Ninth Circuit’s closely divided en banc decision
raises questions of exceptional importance to American elections. Over the dissent of four judges, the
majority invalidated two commonplace election administration provisions used by Arizona and dozens
of other States to prevent multiple voting, protect
against voter intimidation, preserve the secrecy of
the ballot, and safeguard election integrity.
Arizona’s out-of-precinct policy, which does not
count ballots cast in person on Election Day outside
voters’ assigned precincts, is important to the State’s
precinct-based election-day voting system, which the
DNC and the court below called legitimate and “importan[t].” App. 80. Arizona’s ballot-collection law
follows the recommendation of the bipartisan Commission on Federal Election Reform, chaired by former President Jimmy Carter and former Secretary of
State James Baker (“Carter−Baker Commission”),
that “[States] prohibit a person from handling absentee ballots other than the voter, an acknowledged
family member, the U.S. Postal Service or other legitimate shipper, or election officials.”
Section 2 vote-denial cases such as this one, which
challenge election provisions on the basis of small
statistical disparities in voting behavior between minority and non-minority voters, have proliferated
since Shelby County. This Court has never applied
Section 2’s results language to a vote-denial claim,
and thus has never articulated the test that governs
such claims. Lacking this Court’s guidance, the circuits have divided over how to identify a “discriminatory burden on members of a protected class” for
purposes of Section 2. The court below focused nar-

 3
rowly on the disparate impact of the challenged provisions, while others, including recent Fourth, Fifth,
Sixth, and Seventh Circuit decisions, look at the totality of the voting system to determine whether minority voters have an “equal opportunity” to vote.
This case provides an excellent vehicle to bring
clarity to the law. Unlike many prior cases, this case
comes to the Court with a full record developed in a
ten-day merits trial. And unlike other important
cases that failed to reach this Court because the rulings below created insurmountable pressure to
amend the law or a new administration abandoned
its defense, Arizona and its chief legal officer remain
committed to actively defending the provisions here,
which remain materially unchanged. Moreover, the
Ninth Circuit’s en banc reversal of the district
court—and its break from the approach of other circuits—turns on a disagreement about the requirements of Section 2 and the Constitution, not on the
facts. Analysis of the issues is sharpened by a panel
opinion and two forceful en banc dissents. The laws
at issue are commonplace. And the Ninth Circuit
stayed its mandate.
In sum, the legal questions at stake are immensely
important to American democracy, the lower courts
urgently need guidance, and this case presents a superb vehicle to establish a clear rule of law. As the
United States stated below, “[t]his case presents important questions regarding the standards for liability under Section 2 of the Voting Rights Act” where
“voting practices [are] alleged to result in unequal
access to the ballot box for minority voters[.]” App.
551.
Certiorari should thus be granted.

 4
STATEMENT
A.

Arizona’s voter-friendly electoral system

Arizona ensures that all citizens have an equal opportunity to vote by offering online voter registration
and “a flexible mixture of early in-person voting, early voting by mail, and traditional, in-person voting at
polling places on Election Day.” App. 406.
Early voting is “the most popular method of voting”
in Arizona, “accounting for approximately 80 percent
of all ballots cast in the 2016 election.” App. 406.
Arizona allows all voters to vote an early ballot for
any reason, and these ballots may be requested on an
election-by-election basis or by signing up for the
Permanent Early Voter List. App. 406. For the 27
days before Election Day, Arizona voters can vote an
in-person early ballot at any early voting center, or
may return a completed early ballot in three ways:
by postage-free mail; by hand-delivery to any early
voting center or other authorized election official’s
office; and, in some counties, by depositing them in
special drop boxes. App. 406-407. Arizonans also
can vote in-person on Election Day or hand-deliver a
completed early ballot on Election Day to any polling
place. App. 406-407.
B.

Section 2 of the Voting Rights Act

Forty years ago, this Court held that Section 2(a) of
the Voting Rights Act of 1965, as originally enacted,
“add[ed] nothing to” the protections of the Fifteenth
Amendment, and thus was not violated absent intentional discrimination. City of Mobile v. Bolden, 446
U.S. 55, 61 (1980). Congress responded by revising
Section 2(a) to adopt language prohibiting the States
from adopting voting qualifications, standards, or
practices that “result[]” in “denial or abridgement” of

 5
the right to vote “on account of race or color.” 52
U.S.C. § 10301(a).
To establish a violation of amended Section 2, the
plaintiff must prove, “based on the totality of circumstances,” that the State’s “political processes” are
“not equally open to participation by members” of a
protected class, “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” § 10301(b). That is the
“result” that amended Section 2 prohibits: “less opportunity than other members of the electorate,”
viewing the State’s “political processes” as a whole.
The new language was crafted as a compromise designed to eliminate the need for direct evidence of
discriminatory intent, which is often difficult to obtain, but without embracing an unqualified “disparate impact” test that would invalidate many legitimate voting procedures. S. REP. NO. 97–417, at 2829, 31-32, 99 (1982).
This Court has not articulated a test to govern
vote-denial claims under amended Section 2. Not
surprisingly, the circuit courts have diverged. See
Section II.
C.

The DNC’s challenge to Arizona’s thirdparty ballot collection and out-ofprecinct voting rules

Several arms of the Democratic Party (together,
the “DNC”) filed suit in 2016 to challenge the out-ofprecinct policy and the ballot-collection law. They
alleged that these laws violate Section 2 “by adversely and disparately impacting the electoral opportunities of Hispanic, African American, and Native
American Arizonans” and violate the First and Four-

 6
teenth Amendments “by severely and unjustifiably
burdening voting and associational rights.” App.
390. The DNC further alleged that the ballotcollection law violates Section 2 and the Fifteenth
Amendment “because it was enacted with the intent
to suppress voting by Hispanic and Native American
voters.” App. 390.
1. Arizona’s out-of-precinct policy
Arizona’s longstanding out-of-precinct policy is part
of the State’s precinct-based voting system. App.
408-409. “Since at least 1970,” as in most other
States, Arizona voters in counties with precinctbased polling locations “who choose to vote in person
on Election Day” must “cast their ballots in their assigned precinct,” as part of a precinct-based system
that is implemented “by counting only those ballots
cast in the correct precinct.” App. 408-409. In these
counties, a voter who “arrives at a precinct but does
not appear on the precinct register” is directed to the
correct precinct but also may “cast a provisional ballot.” App. 409, 452. If her “address is [later] determined to be within the precinct, the provisional ballot is counted.” App. 409. If not, the ballot is not
counted. App. 409. The out-of-precinct policy is
based on several Arizona statutes, A.R.S. §§ 16-122,
16-135, 16-584, and the Arizona Election Procedures
Manual, which has the force of law, see App. 631-635;
A.R.S. § 16-452.
2. Arizona’s ballot-collection law
Arizona law has long provided that “[o]nly the elector may be in possession of that elector’s unvoted
early ballot,” A.R.S. § 16-542(D), so as “to prevent
undue influence, fraud, ballot tampering, and voter
intimidation,” Miller v. Picacho Elementary School

 7
District No. 33, 877 P.2d 277, 279 (Ariz. 1994). In
2016, the legislature passed the ballot-collection law,
known as H.B. 2023, which amended A.R.S. § 161005 to provide that only election officials, mail carriers, family or household members, or caregivers
may knowingly collect another person’s voted early
ballot. A.R.S. § 16-1005(H)–(I). “Family member”
includes those “related to the voter by blood, marriage, adoption or legal guardianship”; “[h]ousehold
member” includes anyone “who resides at the same
residence”; and “[c]aregiver” includes a “person who
provides medical or health care assistance to the voter in a residence, nursing care institution,” or related
assisted-living settings. A.R.S. § 16-1005(I)(2).
Prohibiting unlimited third-party ballot harvesting
is a commonsense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation. In fact, the
bipartisan Carter−Baker Commission recommended
that States “prohibit a person from handling absentee ballots other than the voter, an acknowledged
family member, the U.S. Postal Service or other legitimate shipper, or election officials.” Comm’n on
Fed. Elections Reform, Building Confidence in U.S.
Elections: Report of the Commission on Federal Election Reform 47 (2005) (“Carter−Baker Report”). As
the Carter−Baker Commission found, “[a]bsentee
ballots remain the largest source of potential voter
fraud,” and “[c]itizens who vote at home, at nursing
homes, at the workplace, or in church are more susceptible to pressure, overt and subtle, or to intimidation.” Id. at 46. It therefore recommended that
“[t]he practice … of allowing candidates or party
workers to pick up and deliver absentee ballots
should be eliminated.” Id. at 47.

 8
D.

Ninth Circuit en banc preliminary injunction and this Court’s stay

In 2016, the DNC sought preliminary injunctions,
which the district court denied. Appeals proceeded
quickly, reaching en banc review in days, with an en
banc injunction against the ballot-collection law just
four days before the 2016 election. Feldman v. Ariz.
Sec’y of State’s Office, 843 F.3d 366, 367 (9th Cir.
2016). The next day, this Court stayed the injunction without dissent. Ariz. Sec’y of State’s Office v.
Feldman, 137 S. Ct. 446 (2016).
E.

The district court’s ten-day trial

The district court thereafter held a ten-day trial on
the merits. The court heard live testimony from seven experts and 33 lay witnesses. App. 393-405. The
court made extensive factual findings, rejecting the
DNC’s claims in a careful 83-page opinion.
In the first part of its analysis, the court held that
the DNC failed to show that the provisions “impose[d] meaningfully disparate burdens on minority
voters as compared to non-minority voters.” App.
484. Alternatively, even assuming cognizable burdens, the court reviewed the record and concluded
that the DNC nonetheless failed to meet their overall
burden for proving a Section 2 claim. App. 484-495.
As to the out-of-precinct policy, the court found
that “the overall number of provisional ballots in Arizona, both as a percentage of the registered voters
and as a percentage of the number of ballots cast,
has consistently declined”; in the 2016 general election, only 3,970 ballots were cast in the wrong precinct—0.15% of 2,661,497 total votes. App. 444-445.
The court also found that roughly 99 percent of mi-

 9
norities and 99.5 percent of non-minorities voted in
the correct precinct. See App. 480; see also App. 331
n.31.
The district court further found that having “to locate and travel to” one’s precinct are “ordinary burdens” of voting. App. 449. Survey results showed
that, unlike those in “several other states,” “none of
the survey respondents for Arizona reported that it
was ‘very difficult’ to find their polling places”; and
that “approximately 94 percent of the Arizona respondents thought [doing so] was very easy or somewhat easy[.]” App. 450. The DNC presented “no evidence” that “precincts tend to be located in areas
where it would be more difficult for minority voters
to find them, as compared to non-minority voters,”
and did not “challenge the manner in which Arizona
counties allocate and assign polling places[.]” App.
483.
Citing the DNC’s failure to show that the out-ofprecinct policy “causes minorities to show up to vote
at the wrong precinct at rates higher than their nonminority counterparts,” the court held the “observed
disparities” of 0.5%—which involved “a small fraction of votes cast statewide”—did not create “a meaningful inequality in the opportunities of minority
voters as compared to non-minority voters.” App.
483-484.
As to the ballot-collection law, the court noted that,
although the law took effect before the 2016 elections, the DNC offered “no records of the numbers of
people who, in past elections, have relied on” thirdparty ballot collectors, and “no quantitative or statistical evidence comparing the proportion [of such voters] that is minority versus nonminority.” App. 468.

 10
As the court put it: “This evidentiary hole presents a
practical problem,” as “[d]isparate impact analysis is
a comparative exercise,” and it knew “of no vote denial case in which a § 2 violation has been found
without quantitative evidence measuring the alleged
disparate impact[.]” App. 468-469.
The court also found that, “even under a generous
interpretation of the [nonstatistical] evidence, the
vast majority of voters who choose to vote early by
mail do not return their ballots with the assistance of
a third-party collector who does not fall within H.B.
2023’s exceptions.” App. 419. Citing the DNC’s “anecdotal estimates from individual ballot collectors,”
the court found that “even among socioeconomically
disadvantaged voters, most do not use ballot collection services to vote.” App. 478.
The court ultimately upheld the ballot-collection
law, explaining that it applies equally to all voters,
does “not impose burdens beyond those traditionally
associated with voting,” and “does not deny minority
voters meaningful access to the political process
simply because [it] makes [returning early ballots]
slightly more difficult or inconvenient for a small, yet
unquantified subset of voters[.]” App. 478. “In fact,
no individual voter testified that H.B. 2023’s limitations on who may collect an early ballot would make
it significantly more difficult to vote.” App. 478.
Finally, the district court “f[ound] that H.B. 2023
was not enacted with a racially discriminatory purpose” or out of “a desire to suppress minority voters.”
App. 497, 504. Although some proponents may have
acted out of “partisan motives” or “a misinformed belief that ballot collection fraud was occurring,” “the
majority … were sincere in their belief that ballot

 11
collection increased the risk of early voting fraud,
and that H.B. 2023 was a necessary prophylactic
measure to bring early mail ballot security in line
with in-person voting.” App. 497, 504.
F.

Ninth Circuit merits proceedings

A divided Ninth Circuit panel affirmed. Judge Ikuta’s majority opinion noted that precinct-based voting is a “common electoral practice” that imposes only “‘the usual burdens of voting,’” App. 333, and that
the DNC lacked evidence that many voters use ballot-collection services. App. 303. As to discriminatory intent, the majority stressed that the law requires
“that the legislature acted with racial motives, not
merely partisan motives,” concluding that “the record does not contain the sort of evidence that has led
other courts to infer the legislature was acting with
discriminatory intent[.]” App. 312, 316-317. Chief
Judge Thomas dissented. App. 337.
The Ninth Circuit granted en banc review, and the
United States filed a brief (and participated in argument), explaining that the challenged provisions
do not violate Section 2. App. 550-580. The en banc
court reversed. In an opinion authored by Judge
Fletcher, the majority held (7-4) that the challenged
provisions violated Section 2’s results test, and (6-5)
that the ballot-collection law was enacted with discriminatory intent, in violation of both Section 2 and
the Fifteenth Amendment. App. 9, 116.
In so holding, the majority concluded that Section 2
is implicated where “more than a de minimis number
of minority voters” “are disparately affected” by a
voting policy. App. 44, 46.

 12
In finding that the ballot-collection law was enacted with discriminatory intent, the majority acknowledged that many proponents of the law “had a sincere, though mistaken, non-race-based belief that
there had been fraud in third-party ballot collection,
and that the problem needed to be addressed.” App.
102. Nevertheless, the majority imputed racial motives to the legislature as a whole, citing its perception of the lack of proof of past fraud, one senator’s
statements five years before the bill passed, and a
partisan video used in advertising; it concluded “that
well meaning legislators were used as ‘cat’s paws.’”
App. 103. While acknowledging that “[f]orbidding
third-party ballot collection protects against potential voter fraud,” the majority reasoned that “such
protection is not necessary, or even appropriate,
when there is a long history of third-party ballot collection with no evidence, ever, of any fraud and such
fraud is already illegal under existing Arizona law.”
App. 114.
The decision prompted two dissents, each joined by
four judges. Judge O’Scannlain rejected the majority’s implicit suggestion “that any facially neutral policy which may result in some statistical disparity is
necessarily discriminatory[.]” App. 134. He also
noted that “[a]necdotal evidence of how voters have
chosen to vote in the past does not establish that voters are unable to vote in other ways or would be burdened by having to do so.” App. 136. And he criticized the majority’s reliance on one senator’s motives, noting that “each legislator is an independent
actor,” that most “sincere[ly] belie[ved] that voter
fraud needed to be addressed,” and that “the underlying allegations of voter fraud did not need to be
true” to defeat any “inference of pretext[.]” App. 145.

 13
Judge Bybee stressed that the challenged rules are
ordinary “time, place, and manner restrictions” designed “to maintain the integrity of the democratic
system.’” App. 147-148. Arizona’s out-of-precinct
policy, he explained, is “a traditional rule, common to
the majority of American states.” App. 156. Arizona’s ballot collection rule not only is “substantially
similar” to provisions “in many other states,” but
“follows precisely the recommendation of the bipartisan Carter−Baker Commission[.]” App. 164,
167.
On February 11, the Ninth Circuit stayed its mandate pending certiorari. App. 637. On April 9, petitioner State of Arizona was granted intervention.
App. 639.
REASONS FOR GRANTING THE PETITION
The Ninth Circuit’s en banc decision urgently warrants review. Over the forceful dissents of four judges, the majority reversed the district court’s careful
judgment, based on a ten-day trial, by reading Section 2 of the Voting Rights Act in a manner that conflicts with the decisions of four other circuits, the position of the United States, and the carefully crafted
compromise reflected in Section 2 itself. The Ninth
Circuit’s expansive disparate-impact theory threatens not only similar laws in dozens of States, but a
host of other sensible election laws that would be
vulnerable to the same analysis.
Only this Court can clarify this area of law. This
Court has never spoken on how Section 2 applies to
vote-denial claims, even though state election laws
have faced a wave of this litigation since Shelby
County v. Holder, 570 U.S. 529 (2013). Both the circuit courts and leading commentators have lamented

 14
that the law governing Section 2 vote-denial cases is
unsettled. And this Court has had to intervene in
such cases with multiple stays. But procedural obstacles—not present here—have kept this Court from
reaching the merits, leaving the courts confused and
the major issues unresolved even as state election
laws remain under threat and have been enjoined.
This case offers this Court a special opportunity.
The record is exhaustively developed by a ten-day
trial on the merits, a thorough 83-page district court
opinion, conflicting panel-stage opinions (where the
district court was affirmed), a divided en banc decision that went the other way over two strong dissents, and the participation of the United States.
The issues are thus well presented. And because a
stay is in effect and Arizona and its chief legal officer
are actively defending the laws, this Court will finally have a chance to bring clarity to this area, which
is extraordinarily vital to American democracy.
I.

The Decision Below Raises Questions Of
Exceptional Importance Concerning The
Right To Vote And The Integrity Of Elections

“Common sense, as well as constitutional law,
compels the conclusion that government must play
an active role in structuring elections; ‘as a practical
matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some
sort of order, rather than chaos, is to accompany the
democratic processes.’” Burdick v. Takushi, 504 U.S.
428, 433 (1992). The decision below, however, reads
Section 2 to upend widespread and commonsense
election rules designed to protect voter autonomy

 15
and election integrity—objectives essential to ensuring public confidence in our democracy.
A.

Invalidation of the commonsense voting
measures here raises important questions warranting review

It is a weighty matter for a federal court to invalidate a State’s laws, and this Court has not hesitated
to grant review on that basis alone. E.g., Alaska v.
Arctic Maid, 366 U.S. 199, 202 (1961). Review is
even more important, however, when “other States”
have “similar laws.” McGee v. Int’l Life Ins. Co., 355
U.S. 220, 221 (1957). In fact, “[d]ecisions invalidating … state statutes (particularly where the statutes
are representative of those in other states), are ordinarily sufficiently important to warrant Supreme
Court review without regard to the existence of a
conflict.” Stephen M. Shapiro et al., Supreme Court
Practice § 6.31(b) (11th ed. 2019). That should be
especially true here, where Arizona’s commonplace
laws help safeguard elections, the foundation of our
democracy.
1. Arizona’s out-of-precinct policy
“It has long been a feature of American democracy
that, on election day, voters must vote in person at
an assigned polling venue—an election precinct”—to
have their votes counted. App. 152 (Bybee, J., dissenting). Some “twenty-six states, the District of Columbia, and three U.S. territories disqualify ballots
cast in the wrong precinct.” Id. at 155; id. at 175-189
(collecting laws); id. at 190-192 (categorizing out-ofprecinct ballot laws). In the Ninth Circuit alone,
three States apply that rule. Id. at 190-192. Thus,
Arizona’s out-of-precinct policy is not “unique,” but
rather a “longstanding,” “traditional,” and “widely

 16
held time, place, or manner rule” found in “every region of the country” and “a majority of American jurisdictions.” Id. at 152, 155-156; App. 579 (United
States explaining that Arizona’s policy is “an unremarkable, decades-old component” of Arizona’s “electoral rules”).
While purportedly leaving in place Arizona’s precinct-based voting system, the en banc majority held
that Section 2 requires at least partially counting
ballots voted in the wrong precinct. This adds substantial complexity: it requires determining what
races each such voter was eligible to vote in. 2 In so
holding, the Ninth Circuit asserted that “[t]he only
plausible justification for Arizona’s OOP [“out-ofprecinct”] policy would be the delay and expense entailed in counting OOP ballots.” App. 81. The court
asserted that there is no finding “that Arizona has
ever sought to minimize the number of OOP ballots.”
App. 80. But that claim is self-refuting—the out-ofprecinct policy itself is Arizona’s means of minimizing such ballots.
Given the acknowledged “importance” of “Arizona’s
precinct-based system,” App. 80, it follows that Arizona’s out-of-precinct policy has a solid justification.
By “[c]ap[ping] the numbers of voters attempting to
vote in the same place,” for example, such rules avoid
overcrowding and facilitate access to the polls.
Sandusky Cty. Democratic Party v. Blackwell, 387
F.3d 565, 569 (6th Cir. 2004). They also make voting
For example, a Scottsdale resident voting in a Glendale precinct receives a ballot with local and state legislative races for
which the Scottsdale resident is ineligible to vote, alongside
county and state-level races for which the Scottsdale resident
would otherwise be eligible.

2

 17
convenient by “allow[ing] each precinct ballot to list
only those votes a citizen may cast, making ballots
less confusing.” Id. And by creating incentives to
vote in the correct place, they “encourage voting” in
“local elections,” which “most directly affect [citizens’] daily lives.” App. 159, 160 (Bybee, J.). They
also, importantly, “make[] it easier for election officials to monitor votes and prevent election fraud.”
Blackwell, 387 F.3d at 569.
The reasonableness of the out-of-precinct policy is
even clearer when it is viewed, as Section 2 requires,
in light of the “totality” of Arizona’s voting system.
52 U.S.C. § 10301(b). The district court concluded
that, considered in that light, the policy did not create “a meaningful inequality in the opportunities of
minority voters as compared to non-minority voters.”
App. 483-484. This tracks the record. Arizona provides 27 days to cast a ballot, either by mail or in
person, with early voting accounting for up to 80 percent of ballots cast. On Election Day, 99 percent of
minorities and 99.5 percent of non-minorities vote in
the correct precinct. App. 480; see also App. 331
n.31. In a system with so many ways to vote, the
fact that minority voters slightly outnumber nonminority voters among the small fraction of a percent
who cast votes in the wrong precinct does not imply
that minority voters have less “opportunity” to participate in the State’s “political processes.” 52 U.S.C.
§ 10301(b).
2. Arizona’s ballot-collection law
While Arizona gives its citizens 27 days to return
early ballots, it also recognizes that absentee voting
carries potential for ballot fraud and voter intimidation, particularly if unrelated third parties, such as

 18
political operatives, can collect and submit ballots.
The Arizona Constitution states that “secrecy in voting shall be preserved” in elections. Ariz. Const. art.
VII, § 1. The ballot-collection law serves that interest by creating “procedural safeguards to prevent
undue influence, fraud, ballot tampering, and voter
intimidation.” See Miller, 877 P.2d at 279; App. 265.
Arizona has taken reasonable steps to insulate early
voters: completed early ballots may be returned only
by family, household members, caregivers, mail carriers, or election officials. A.R.S. § 16-1005(H)−(I).
In this way, Arizona enables absentee voters to execute “a secret ballot”—“the prerequisite of a democratic election.” Carter−Baker Report 67.
Arizona is not alone. Many States and territories
have enacted “neutral time, place, or manner provision[s] to help ensure the integrity of the absentee
voting process” by limiting who may return completed ballots. App. 163, 164-167 (Bybee, J.); id. at 193255 (collecting laws). While these laws vary—some
“permit a broader range of people to collect” ballots,
but limit “how many” they can collect; others prohibit
collecting ballots “for compensation”; and still others
apply different penalties—“Arizona’s ballot collection
rule is fully consonant with the broad range of rules”
and “substantially similar” to many that criminalize
third-party ballot-collection. Id. at 164-167. Indeed,
in allowing household members and caregivers to
handle absentee ballots, Arizona is more generous
than many jurisdictions. Id.
If any doubt remained that Arizona’s ballotcollection law is sensible, one need only consider that
it “follows precisely” the bipartisan Carter−Baker
Commission’s recommendation. Id. at 167. The
Commission urged States to “reduce the risks of

 19
fraud and abuse in absentee voting by prohibiting
‘third-party’ organizations, candidates, and political
party activists from handling absentee ballots,” and
formally recommended that:
[States] should prohibit a person from handling absentee ballots other than the voter,
an acknowledged family member, the U.S.
Postal Service or other legitimate shipper, or
election officials. The practice … of allowing
candidates or party workers to pick up and
deliver absentee ballots should be eliminated.
Carter−Baker Report 46-47; App. 168 (Bybee, J.).
Moreover, outside of Arizona, there is ample “evidence [of] voter fraud in the collecting of absentee
ballots.” App. 169 (Bybee, J.) (collecting cases). Just
last year, North Carolina’s State Board of Elections
unanimously vacated the 2018 general election for a
congressional seat because a “coordinated, unlawful,
and well-funded absentee ballot scheme … perpetrated fraud and corruption upon the election[.]”
App. 584. And the leading opinion in Crawford v.
Marion County Elections Board identified “fraudulent voting” that was “perpetrated using absentee
ballots.” 553 U.S. 181, 195-196 (2008) (plurality op.);
see also Veasey v. Abbott, 830 F.3d 216, 256 (5th Cir.
2016) (en banc) (“The district court credited expert
testimony showing mail-in ballot fraud is a significant threat—unlike in-person voter fraud.”). For the
Ninth Circuit to prohibit reliance on evidence from
other States effectively prevents Arizona from proactively taking steps to prevent fraud before it occurs;
after all, fraud is difficult to detect, and an absence
of evidence is not evidence of absence.

 20
3. The imputation of racial bias
The need for review is compounded by the majority’s erroneous reversal of the district court’s factual
finding on whether the Arizona legislature acted
with racial animus—a loaded charge with potentially
long-term legal, social, and practical consequences.
Even apart from this particular case, this erroneous
finding could be weaponized in future litigation to
undermine Arizona’s autonomy to govern itself (e.g.,
through “bail-in” under Section 3(c) of the Voting
Rights Act, or in future vote-denial cases)—further
exacerbating uncertainty in Arizona law. 3
In a stunning exemplar of overgeneralization, the
majority made sweeping statements that, “[f]or over
a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African American citizens, limiting or eliminating their ability to vote and
to participate in the political process.” App. 7. Such
“inflammatory and unsupportable charges of racist
motivation poison[s] the political atmosphere.” Veasey, 830 F.3d at 281-282 (Jones, J., dissenting). Indeed, Congress amended Section 2 to avoid “unnecessarily divisive … charges of racism on the part of
individual officials or entire communities.” Thornburg v. Gingles, 478 U.S. 30, 44 (1986). This Court
should prevent that unwarranted result here.

Compare Rick Hasen & Travis Crum, Crum: The Fifteenth
Amendment and DNC v. Hobbs, Election L. Blog (Jan. 31,
2020), https://electionlawblog.org/?p=109188 (ruling “unnecessary to the judgment, though it does qualify Arizona for bailin”), with Shelby Cty., 570 U.S. at 543-544 (discussing sovereignty considerations pertinent to subjecting states to preclearance and other Voting Rights Act strictures).
3

 21
B.

The majority’s statutory and constitutional analysis threatens innumerable
laws nationwide and conflicts with Section 2 itself

Beyond the fact that the ruling below casts doubt
on widely used in-precinct voting and ballotcollection rules, the decision’s reasoning threatens
many more laws, and is manifestly wrong.
1. The majority’s Section 2 results test
analysis
a. The majority’s logic threatens a host of election
laws by holding that a “more than de minimis” statistical disparity is enough to implicate Section 2, regardless of whether minorities have less electoral
opportunity. “[A]ny procedural step filters out some
potential voters,” and “[n]o state has exactly equal
registration rates, exactly equal turnout rates, and
so on, at every stage of its voting system.” Frank v.
Walker, 768 F.3d 744, 749, 754 (7th Cir. 2014). As
Judge O’Scannlain observed, however, not every “facially neutral policy which may result in some statistical disparity is necessarily discriminatory[.]” App.
134.
For example, many States require voters to register
before elections, present valid IDs, vote in-person, or
mail absentee ballots by a given date—any of which
might well, given socioeconomic disparities, result in
more than a de minimis racial disparity in practice.
See App. 151 (Bybee, J.). If that were enough to
prove a discriminatory burden under Section 2, the
law would “dismantle every state’s voting apparatus,” including “almost all registration and voting
rules.” Frank, 768 F.3d at 754. Section 2, however,
“does not sweep away all election rules that result in

 22
a disparity in the convenience of voting.” Lee v. Va.
State Bd. of Elections, 843 F.3d 592, 601 (4th Cir.
2016).
What is more, the Ninth Circuit’s rule flouts the
statute’s text and casts aside Congress’s 1982 compromise. See Pub. L. No. 97−205, 96 Stat. 131
(1982). Congress expanded Section 2 to invalidate
election practices with discriminatory results, but
only if, as a result of the challenged practice and under “the totality of the circumstances,” minority voters “have less opportunity” to “participate” and “to
elect representatives.” 52 U.S.C. § 10301(b). In expanding Section 2’s coverage, Congress adopted a
rule in between (1) the old, “inordinately difficult”
“intent test” and (2) an unbounded results test that
might invalidate “thousands” of election rules based
on “the slightest evidence of underrepresentation of
minorities.” S. REP. NO. 97−417, at 31, 36. The
courts “must make every effort to be faithful to the
balance Congress struck.” Gingles, 478 U.S. at 84
(O’Connor, J., concurring). But the en banc majority
struck its own balance—one that Congress rejected—
and only this Court can restore the proper balance.
b. The majority set up a host of States to fail under
Section 2 by placing no apparent limit on the use of
historical evidence from bygone eras. The majority
devoted seventeen pages to the 1840s through the
1990s. App. 50-67. This included extended discussion of actions before Arizona became a State, including “[e]arly territorial politicians” embracing manifest destiny, “a flood of Anglo-American and European immigrants” overwhelming prominent Hispanics,
and Arizona’s 1910 constitutional delegates failing to
include dual-language provisions. App. 50-52.

 23
Only a few pages, by contrast, concern the last
twenty years. App. 67-68, 88. And even then, the
majority pointed to only four items of recent history
as evidencing pertinent official discrimination: (1) a
one-time, since-abandoned change in the number of
Maricopa County polling places for the 2016 Presidential Preference Election; (2) isolated, erroneous
translations in voting materials by Maricopa County
in 2012 and 2016; (3) withdrawal of a pre-clearance
request in connection with a “relatively innocuous
ballot-collection provision” in 2011; and (4) repeal of
another voting rule based on public opposition. See
App. 67-68, 88. In discussing the present-day effects
of discrimination, moreover, the majority made no
effort to connect the identified racial disparities to
official discrimination—Section 2 was deemed satisfied based solely on disparities in poverty, employment, home ownership, mail delivery, and health.
App. 72-75, 89-90.
c. The majority’s hyper-skeptical treatment of the
State’s rationale for the challenged provisions likewise threatens commonsense voting measures in
other States. For example, the majority acknowledged the district court’s finding that the ballotcollection law “minimiz[es] the opportunities for ballot tampering, loss, and destruction,” helping to
“maintain[] ‘public confidence in election integrity.’”
App. 91. Nevertheless, the majority brushed off that
finding, reasoning that, before the law, “third-party
ballot collection was permitted for many years,” yet
no one “ever found a case of voter fraud connected to”
it in Arizona. App. 92. The majority treated other
States’ experience and the Carter−Baker Commission’s expert recommendations as having “little bearing on the case before us.” App. 93, 94.

 24
States will be hamstrung in their ability to ensure
public confidence in their elections if they can be
held to have acted pretextually in following recommendations of respected bipartisan commissions concerning how to prevent fraud, as well as the experience of other jurisdictions. “Legislatures … should
be permitted to respond to potential deficiencies in
the electoral process with foresight.” Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986). In
Crawford, for example, “[t]he record contain[ed] no
evidence of any [voter impersonation] fraud actually
occurring in Indiana at any time in its history,” yet
that did not doom Indiana’s voter ID law, as “fraud
in other parts of the country ha[d] been documented.” 553 U.S. at 194-195 (plurality).
2. The majority’s discriminatory intent
analysis
The majority’s discriminatory intent analysis—its
6-5 holding that, due to a single legislator, the legislature as a whole acted with a discriminatory purpose in adopting the ballot-collection law—is equally
threatening. Most notably, the majority wrongly applied the “cat’s paw” theory to legislative action,
failed to heed Crawford’s blessing of prophylactic efforts to prevent voter fraud, and trampled the correct
standard of review.
a. As Judge O’Scannlain explained, the majority’s
unprecedented reliance on a “cat’s paw” theory—an
“employment discrimination doctrine”—in a Voting
Rights Act case “is misplaced because, unlike employers whose decision may be tainted by the discriminatory motives of a supervisor, each legislator
is an independent actor[.]” App. 144. Until now, it
has long been settled that “[w]hat motivates one leg-

 25
islator to make a speech about a statute is not necessarily what motivates scores of others to enact it.”
United States v. O’Brien, 391 U.S. 367, 384 (1968).
And even where “racial identification is highly correlated with political affiliation” and legislators are
“conscious” of disparate racial impacts, plaintiffs
must specifically show that racial motives motivated
the legislature. Cooper v. Harris, 137 S. Ct. 1455,
1473 (2017) (quoting Easley v. Cromartie, 532 U.S.
234, 243 (2001)); Hunt v. Cromartie, 526 U.S. 541,
551-552 (1999). Here, however, the court confused
“racial motives and partisan motives.” App. 142
(O’Scannlain, J.).
b. According to the majority, the lack of direct evidence of ballot-collection fraud in Arizona showed racial animus. See App. 101. But as Crawford teaches,
the absence of “any such fraud actually occurring in
[Arizona] at any time in its history” is irrelevant
when such fraud “ha[s] been documented” in “other
parts of the country.” 553 U.S. at 194-195 (plurality). That guidance is especially on point here, where
North Carolina’s State Board of Elections unanimously invalidated the 2018 general election for a
congressional seat on account of analogous absenteeballot-harvesting fraud. App. 581-630. And, as the
Fifth Circuit has explained, the “potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting.” Veasey, 830 F.3d at
239; see also id. at 256 (“The district court credited
expert testimony showing mail-in ballot fraud is a
significant threat—unlike in-person voter fraud.”).
Indeed, it is nothing short of extraordinary that the
bare, 6-5 majority here would declare “[f]orbidding
third-party ballot collection” to be “not necessary, or

 26
even appropriate” absent documented proof of past
fraud in Arizona. App. 114.
c. The majority’s outright disregard for the proper
standard of review—which it “completely ignore[d],”
applying “its own de novo review”—further supports
granting review. App. 141 (O’Scannlain, J.). Whether a policy “reflect[s] an intent to discriminate on account of race” is “a pure question of fact, subject to
Rule 52(a)’s clearly-erroneous standard”—precisely
the kind of determination on which a district judge,
having personally heard the witnesses, receives immense deference. Pullman-Standard v. Swint, 456
U.S. 273, 287-288 (1982); see also Anderson v. Bessemer City, 470 U.S. 564, 573 (1985); id. at 575 (“determinations regarding the credibility of witnesses”
warrant “even greater deference”).
II.

Lacking This Court’s Guidance, The Circuits Are Deeply Divided Over How To Determine If Laws Impose A “Discriminatory
Burden” Under Section 2

Despite a surge in vote-denial claims since Shelby
County, “the Court has yet to consider a Section 2
vote-denial claim after Gingles,” and “the standard
for such adjudication is unsettled.” Northeast Ohio
Coal. for the Homeless v. Husted, 837 F.3d 612, 626
(6th Cir. 2016). 4 Multiple circuits have noted that
Gingles is “unhelpful in voter qualification cases.”
Frank, 768 F.3d at 754 (agreeing with Fourth and
See also Michael J. Pitts, Rethinking Section 2 Vote Denial,
46 Fla. St. U. L. Rev. 1, 3, 4 (2018) (“not a single United States
Supreme Court decision[] ha[s] interpreted the results standard
in the vote denial context” despite an “increase in Section 2 vote
denial litigation”); Veasey, 830 F.3d at 247 n.37 (Section 2 cases
“have increased since Shelby County.”).
4

 27
Sixth Circuits); see also Veasey, 830 F.3d at 243-244
(“there is little authority on the proper test”); Simmons v. Galvin, 575 F.3d 24, 42 n.24 (1st Cir. 2009)
(“the Supreme Court’s seminal opinion in Gingles …
is of little use” and “a satisfactory test” has “yet to
emerge”). In short, lacking any “clear standard,” the
circuits have found it “challenging” to “apply[] Section 2’s ‘results test’ to vote-denial claims.” Ohio
Democratic Party v. Husted, 834 F.3d 620, 636 (6th
Cir. 2016).
Many circuits currently use a two-step framework
that frankly is difficult to square with the compromise that Congress struck in Section 2’s text and has
little connection to Gingles. As the United States put
it to the en banc court: “If applied too literally, this
test could be troublingly over-inclusive and could invalidate many commonplace rules of modern election
administration”; “not all racially disparate impacts,
including those rooted in socio-economic disparities,
will actually result in ‘less opportunity’ to vote.”
App. 563.
Regardless of their overall framework, the circuits
are intractably divided over the core question highlighted by the United States: how to determine
whether a provision produces an unlawful “discriminatory burden” as opposed to a mere disparate inconvenience. Only this Court can resolve that split.
A.

Four circuits have held that a disparate
impact is insufficient to show an unlawful discriminatory burden absent proof
of less opportunity to vote

Led by the Seventh Circuit, four circuits have held
that Section 2 “does not condemn a voting practice
just because it has a disparate effect on minorities”

 28
or produces a “statistical disparity.” Frank, 768 F.3d
at 753, 752. Rather, consistent with Section 2(b)’s
text, these circuits ask whether, considering “the entire voting and registration system,” the practice at
issue makes the election “not equally open” to minorities, or leaves them with “less opportunity” to vote.
Id. at 753 (emphasis in original); accord Lee, 843
F.3d at 600-601; Ohio Democratic Party, 834 F.3d at
637; Veasey, 830 F.3d at 253-254.
The leading case is Frank v. Walker, in which the
Seventh Circuit reversed the invalidation of Wisconsin’s voter-ID law in the face of findings that “white
registered voters are more likely to possess qualifying photo IDs, or the documents necessary to get
them.” 768 F.3d at 752. “To the extent outcomes
help to decide whether the state has provided an
equal opportunity,” the court held, “it is essential to
look at everything (the ‘totality of the circumstances,’
§ 2(b) says)”—not just at the challenged laws “in isolation.” Id. at 753-754. Yet “the district judge did
not find that [minorities] have less ‘opportunity’ than
whites to get photo IDs”—only that they are “less
likely to use that opportunity”—so the “disparate
outcome” did not amount to the requisite denial or
abridgment of the right to vote. Id. at 753. As the
court recognized, reading Section 2 to impose an
“equal-outcome command” would “sweep[] away almost all registration and voting rules,” as “[n]o state
has exactly equal registration rates, exactly equal
turnout rates, and so on, at every stage of its voting
system.” Id. at 754.
Recent Fourth Circuit precedent follows the Seventh Circuit. In Lee, the district court, facing a challenge to Virginia’s voter-ID law, found “‘a slim statistical margin’” of difference between the rates at

 29
which black and white voters had valid IDs, and the
plaintiffs argued that this “disparate burden … ha[d]
the effect of denying African Americans and Latinos
an equal opportunity to vote.” 843 F.3d at 599-600.
But the court rejected the notion that a provision
triggers Section 2 “as long as there is disparity in the
rates at which different groups possess acceptable
identification,” noting that such a rule would “sweep
away all election rules that result in a disparity in
the convenience of voting.” Id. at 600-601.
Consistent with Section 2’s text, Lee stressed that
“disparate inconveniences” are insufficient, as “§ 2
asks … whether the Virginia process has diminished
the opportunity of the protected class to participate
in the electoral process,” and thus results in “the denial or abridgement of the right to vote.” Id. at 601
(emphasis omitted). And since nothing in the record
“support[ed] a conclusion that minorities are not afforded an equal opportunity to obtain a free voter
ID”—e.g., “none of the voter witnesses identified any
‘legal obstacle inhibiting their opportunity to vote’”—
the plaintiffs “simply failed” to show that they “ha[d]
less of an opportunity than others to” vote. Id. at
598, 600.
Recent Sixth Circuit precedent is in accord with
this approach. In Ohio Democratic Party, for example, the court reversed a ruling striking down Ohio
laws reducing the days allowed for early voting and
eliminating same-day registration, explaining that a
law imposes no “discriminatory burden” under Section 2 unless “members of the protected class have
less opportunity than other members of the electorate to participate in the political process and to
elect representatives of their choice.” 834 F.3d at
637. To be sure, the plaintiffs there showed that Af-

 30
rican-Americans voted early and same-day registered
“at a rate higher than other voters.” Id. at 627-628.
But such a showing was not “sufficient” under Section 2’s text:
Section 2’s textual requirement that a voting
standard or practice, to be actionable, must
result in an adverse disparate impact on protected class members’ opportunity to participate in the political process … cannot be construed as suggesting that the existence of a
disparate impact, in and of itself, is sufficient
to establish the sort of injury that is cognizable and remediable under Section 2.
Id. at 637. In the Sixth Circuit, therefore, “disproportionate racial impact alone” is insufficient to
prove a “cognizable” discriminatory burden; plaintiffs
must also show that the law “caus[es] racial inequality in the opportunity to vote.” Id. at 637-639 (emphasis added).
Similarly, in Veasey, a challenge to a Texas voterID law, the Fifth Circuit held that Section 2 outlaws
only “burdens on minority voters that would disproportionately abridge their ability to participate in the
political process.” 830 F.3d at 253. The court there
affirmed the law’s invalidity precisely because the
district court’s holding “rest[ed] on far more than a
statistical disparity.” Id. at 253-254. Viewing the
system as a whole, the court explained, the district
court made “concrete” findings “regarding the excessive burdens faced by Plaintiffs.” Id. at 254. In particular, the court found that they faced “many specific burdens in attempting to obtain [the required ID]
or vote,” and that Texas’s mail-in voting system in-

 31
volved “complex procedure[s]” and was “not an acceptable substitute for in-person voting.” Id. at 255. 5
B.

In the Ninth Circuit, anything more than
a de minimis disparity establishes a discriminatory burden

Under Ninth Circuit law, the discriminatoryburden requirement is satisfied whenever “more
than a de minimis number of minority voters” are
disparately affected by a particular feature of election law, without regard to the core statutory criterion of “opportunity.” App. 44, 46, 86-87. The court
did not require proof that, viewing the entire system,
minority voters have less opportunity to vote in their
assigned precincts or without the assistance of party
operatives and other strangers. To make matters
worse, the court gave short shrift to the voting system as a whole, rebuking the district court for analyzing the number of out-of-precinct ballots as a percentage of all ballots cast (0.47 percent in 2012 and
0.15 percent in 2016). App. 43-44. That ignores Section 2’s mandate that, “based on the totality of circumstances, it [be] shown that the political processes
leading to nomination or election in the State or political subdivision are not equally open.” 52 U.S.C.
§ 10301(b) (emphasis added).
Nor did the Ninth Circuit allude to any evidence
that minority voters face any greater obstacle to voting by one of the several means available under AriTo be sure, the dissent questioned the Fifth Circuit’s application of this standard. Id. at 306-307 (Jones, J., dissenting). Yet
the majority flatly rejected the dissent’s characterization of “the
district court’s findings as resting solely on a statistical disparity … rather than any concrete proof that voters were denied the
right to vote.” Id. at 253.
5

 32
zona law: in-precinct voting, mail-in voting, early
voting at voting centers, etc. The court relied entirely on evidence of the slight statistical disparity between minorities who attempt to cast ballots out of
precinct and non-minorities who do so. App. 44, 46.
Under the Seventh Circuit’s reading, by contrast,
that would not require a State to create yet another
voting method—in-person, out-of-precinct Election
Day voting. See Frank, 768 F.3d at 753.
The Ninth Circuit’s approach squarely conflicts
with the circuits discussed above, which deem it “essential to look at everything”—not just at the challenged laws “in isolation,” Frank, 768 F.3d at 753754—and reject the notion that “a disparate impact,
in and of itself, is sufficient” to satisfy Section 2,
Ohio Democratic Party, 834 F.3d at 637. Indeed,
some of those cases involved significantly greater
statistical disparities than exist here. E.g., Frank,
768 F.3d at 752 (“97.6% of whites, 95.5% of blacks,
and 94.1% of Latinos currently possess either qualifying photo IDs or the documents that would permit
Wisconsin to issue them”).
C.

The Ninth Circuit’s view is in accord
with older Fourth and Sixth Circuit
precedent

The Ninth Circuit relied on League of Women Voters v. North Carolina, 769 F.3d 224 (4th Cir. 2014),
which sustained a Section 2 challenge to North Carolina’s decision to stop counting out-of-precinct ballots. App. 46. Citing figures like those here, App. 45,
the court held that “3,348 out-of-precinct provisional
ballots” by minority voters qualified as a “substantial
number” of disparately affected voters without
broader analysis of the voting system. League of

 33
Women Voters, 769 F.3d at 244. As the court put it,
“what matters for purposes of Section 2 is not how
many minority voters are being denied equal electoral opportunities but simply that ‘any’ minority
voter is being denied equal electoral opportunities.”
Id.
This approach is also echoed by Michigan State A.
Philip Randolph Institute v. Johnson, 833 F.3d 656
(6th Cir. 2016). The court there affirmed a preliminary injunction based on the district court’s finding
that “plaintiffs had demonstrated that [Michigan’s
removal of straight-party voting] imposed a disproportionate effect on African–American voters because
… African–Americans are more likely to use
straight-party voting than white voters.’” Id. at 668.
*

*

*

In sum, the circuits have found it “challenging” to
“apply[] Section 2’s ‘results test’ to vote-denial
claims.” Ohio Democratic Party, 834 F.3d at 636.
The Ninth Circuit’s holding that anything beyond a
de minimis statistical disparity qualifies as a discriminatory burden breaks sharply from recent Seventh, Sixth, Fifth, and Fourth Circuit precedent
holding—consistent with Section 2’s text—that “disproportionate racial impact alone” is insufficient; the
challenged practice must also abridge “the opportunity to vote.” Id. at 637-638. The law in this important
area is thus unsettled, and only this Court can provide a “clear standard.” Id. at 636.

 34
III.

This Case Is An Ideal Vehicle To Address
The Meaning Of Section 2 And The Requirements Of The Fifteenth Amendment

This case is a superb vehicle to address the law in
this vital area. First, the challenged provisions are
commonplace, the claims here represent a growing
number of election cases, and the majority below
squarely addressed the central Section 2 and discriminatory intent questions by applying a legal approach that could as easily apply to any other State’s
laws. Thus, this Court’s decision will have broad impact.
Second, the challenged provisions have not been
materially amended, which is notable given the
enormous pressure to amend laws that are invalidated in Section 2 litigation, especially given the uncertainty of obtaining a ruling before legislatures feel
they must act. Indeed, this appears to have stopped
numerous Section 2 vote denial cases from reaching
this Court. 6
Third, unlike earlier cases where a change in officeholders led States to abandon the defense of their
laws, both the State and petitioner Brnovich, the Arizona Attorney General, are committed to proceeding. Cf. North Carolina v. N.C. NAACP, 137 S. Ct.
1399, 1400 (2017) (Roberts, C.J.).

Mich. State A. Philip Randolph Inst. v. Johnson, No. 181910, Dkt. 30, 36-2 (6th Cir. Jan. 14, 2019) (voter initiative effectively nullified challenged law, rendering appeal moot); Veasey v. Abbott, 888 F.3d 792, 795 (5th Cir. 2018) (“During the
remand, the Texas legislature passed a law designed to cure all
the flaws” and “succeeded”).
6

 35
Fourth, unlike earlier Section 2 cases that arose at
the preliminary injunction stage or required a remand to address factual or remedial issues, this case
arises from a final judgment based on a fully developed record, including detailed findings made after a
10-day trial. App. 389-506; cf. Abbott v. Veasey, 137
S. Ct. 612, 613 (2017) (Roberts, C.J.) (issues “better
suited for certiorari” after “final judgment”).
In sum, this case goes to the heart of Section 2 and
the constitutional issues that warrant resolution,
and none of the obstacles that have kept past cases
from reaching this Court is present here.
CONCLUSION
For the foregoing reasons, certiorari should be
granted.
April 27, 2020
Respectfully submitted,
MICHAEL W. MCCONNELL MARK BRNOVICH
STEFFEN N. JOHNSON
Attorney General
WILSON SONSINI
GOODRICH & ROSATI, PC ORAMEL H. (O.H.) SKINNER
1700 K Street, N.W.
Solicitor General
Washington, D.C. 20006
Counsel of Record
(202) 973-8800
RUSTY D. CRANDELL
Deputy Solicitor General
JOSEPH A. KANEFIELD
KATE B. SAWYER
Chief Deputy and
Assistant Solicitor General
Chief of Staff
JENNIFER J. WRIGHT
BRUNN W. ROYSDEN III
KATLYN J. DIVIS
Division Chief
Assistant Attorneys General
OFFICE OF THE ARIZONA
OFFICE OF THE ARIZONA
ATTORNEY GENERAL
ATTORNEY GENERAL
2005 N. Central Ave.
Phoenix, AZ 85004
(602) 542-5025
o.h.skinner@azag.gov
Counsel for Petitioners