Dnc v. Michele Reagan , 904 F.3d 686 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE DEMOCRATIC NATIONAL No. 18-15845
COMMITTEE; DSCC, AKA
Democratic Senatorial Campaign D.C. No.
Committee; THE ARIZONA 2:16-cv-01065-DLR
DEMOCRATIC PARTY,
Plaintiffs-Appellants,
OPINION
v.
MICHELE REAGAN, in her official
capacity as Secretary of State of
Arizona; MARK BRNOVICH,
Attorney General, in his official
capacity as Arizona Attorney
General,
Defendants-Appellees,
THE ARIZONA REPUBLICAN
PARTY; BILL GATES,
Councilman; SUZANNE KLAPP,
Councilwoman; DEBBIE LESKO,
Sen.; TONY RIVERO, Rep.,
Intervenor-Defendants-
Appellees.
2 DNC V. REAGAN
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted July 20, 2018
San Francisco, California
Filed September 12, 2018
Before: Sidney R. Thomas, Chief Judge, and
Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Dissent by Chief Judge Thomas
DNC V. REAGAN 3
SUMMARY*
Civil Rights
The panel affirmed the district court’s judgment, entered
following a bench trial, in an action challenging under the
First, Fourteenth and Fifteenth Amendments, and § 2 of the
Voting Rights Act, two state of Arizona election practices:
(1) Arizona’s requirement that in-person voters cast their
ballots in their assigned precinct, which Arizona enforces by
not counting ballots cast in the wrong precinct; and (2) House
Bill 2023, which makes it a felony for third parties to collect
early ballots from voters, unless the collector falls into one of
several exceptions.
The panel held that the district court did not err in holding
that H.B. 2023 and the out of precinct policy did not violate
the First and Fourteenth Amendments because the provisions
imposed only a minimal burden on voters and were
adequately designed to serve Arizona’s important regulatory
interests. The panel also concluded that the district court did
not err in holding that H.B. 2023 and the out of precinct
policy did not violate § 2 of the Voting Rights Act. The panel
held that given the minimal burden imposed by these election
practices, plaintiffs failed to show that minority voters were
deprived of an equal opportunity to participate in the political
process and elect candidates of their choice. Finally, the
panel concluded that that the district court did not err in
holding that H.B. 2023 did not violate the Fifteenth
Amendment because plaintiffs failed to carry their burden of
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 DNC V. REAGAN
showing that H.B. 2023 was enacted with discriminatory
intent.
Dissenting, Chief Judge Thomas stated that Arizona’s
policy of wholly discarding—rather than partially
counting—votes cast out-of-precinct had a disproportionate
effect on racial and ethnic minority groups. He stated that the
policy violated § 2 of the Voting Rights Act, and it
unconstitutionally burdened the right to vote guaranteed by
the First Amendment and incorporated against the states
under the Fourteenth Amendment. He further wrote that H.B.
2023, which criminalizes most ballot collection, served no
purpose aside from making voting more difficult, and keeping
more African American, Hispanic, and Native American
voters from the polls than white voters.
COUNSEL
Bruce V. Spiva (argued), Alexander G. Tischenko, Amanda
R. Callais, Elisabeth C. Frost, and Marc E. Elias, Perkins
Coie LLP, Washington, D.C.; Sarah R. Gonski and Daniel C.
Barr, Perkins Coie LLP, Phoenix, Arizona; Joshua L. Kaul,
Perkins Coie LLP, Madison, Wisconsin; for Plaintiffs-
Appellants.
Dominic E. Draye (argued), Joseph E. La Rue, Karen J.
Hartman-Tellez, Kara M. Karlson, and Andrew G. Pappas,
Office of the Attorney General, Phoenix, Arizona, for
Defendants-Appellees.
Brett W. Johnson (argued) and Colin P. Ahler, Snell &
Wilmer LLP, Phoenix, Arizona, for Intervenor-Defendants-
Appellees.
DNC V. REAGAN 5
OPINION
IKUTA, Circuit Judge:
The Democratic National Committee (DNC) and other
appellants1 sued the state of Arizona,2 raising several
challenges under the First, Fourteenth and Fifteenth
Amendments, and § 2 of the Voting Rights Act of 1965
(VRA), 52 U.S.C. § 10301, against two state election
practices: (1) Arizona’s longstanding requirement that in-
person voters cast their ballots in their assigned precinct,
which Arizona enforces by not counting ballots cast in the
wrong precinct (referred to by DNC as the out-of-precinct or
OOP policy), and (2) H.B. 2023, a recent legislative
enactment which precludes most third parties from collecting
early ballots from voters. After a lengthy trial involving the
testimony of 51 witnesses and over 230 evidentiary exhibits,
the district court rejected each of DNC’s claims. Democratic
Nat’l Comm. v. Reagan, — F. Supp.3d —, No. CV-16-01065-
PHX-DLR, 2018 WL 2191664 (D. Ariz. May 10, 2018).
1
The appellants here (plaintiffs below) are the Democratic National
Committee, the Democratic Senatorial Campaign Committee, and the
Arizona Democratic Party. For convenience, we refer to the appellants as
“DNC.”
2
The appellees here (defendants below) are Arizona Secretary of
State Michele Reagan, in her official capacity, and Arizona Attorney
General Mark Brnovich, in his official capacity. The intervenor-
defendants/appellees are the Arizona Republican Party; Debbie Lesko, an
Arizona member of the U.S. House of Representatives; Tony Rivero, a
member of the Arizona House of Representatives; Bill Gates, a member
of the Maricopa County Board of Supervisors; and Suzanne Klapp, a City
of Scottsdale Councilwoman and Precinct Committeewoman. For
convenience, we refer to the appellees as “Arizona.”
6 DNC V. REAGAN
In deciding this case, the district court was tasked with
making primarily factual determinations. For instance, a First
and Fourteenth Amendment challenge to an election rule
involves the “intense[ly] factual inquiry” of whether a
plaintiff has carried the burden of showing that challenged
election laws impose a severe burden on Arizona voters, or a
subgroup thereof. Gonzalez v. Arizona, 485 F.3d 1041, 1050
(9th Cir. 2007). A Fifteenth Amendment claim involves the
“pure question of fact” of whether the plaintiff has carried the
burden of showing that the state legislature enacted the
challenged law with a discriminatory intent. Pullman-
Standard v. Swint, 456 U.S. 273, 287–88 (1982). And in a
VRA challenge, we defer to “the district court’s superior fact-
finding capabilities,” Smith v. Salt River Project Agric.
Improvements & Power Dist., 109 F.3d 586, 591 (9th Cir.
1997), regarding whether the plaintiff has carried the burden
of showing that an election practice offers minorities less
opportunity “to participate in the political process and to elect
representatives of their choice.” 52 U.S.C. § 10301(b); see
also Chisom v. Roemer, 501 U.S. 380, 397 (1991). We must
affirm these factual findings unless they are “clearly
erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 573
(1985).
In its detailed 83-page opinion, the district court found
that DNC failed to meet its burden on these critical factual
questions. Its analysis on these factual inquiries was
thorough and evenhanded, with findings well-supported by
the record. Given the district court’s extensive factual
findings, much of DNC’s appeal amounts to a request that we
reweigh and reevaluate the evidence in the record. But we
may not “duplicate the role of the lower court” or reject
factual findings that, as here, are not clearly erroneous. Id. at
DNC V. REAGAN 7
573. Nor did the district court err in identifying and applying
the correct legal standard to each of DNC’s claims.
Accordingly, we conclude that the district court did not
err in holding that H.B. 2023 and the OOP policy did not
violate the First and Fourteenth Amendments because they
imposed only a minimal burden on voters and were
adequately designed to serve Arizona’s important regulatory
interests. We also conclude that the district court did not err
in holding that H.B. 2023 and the OOP policy did not violate
§ 2 of the VRA. Given the minimal burden imposed by these
election practices, DNC failed to show that minority voters
were deprived of an equal opportunity to participate in the
political process and elect candidates of their choice. Finally,
we conclude that the district court did not err in holding that
H.B. 2023 did not violate the Fifteenth Amendment, because
DNC failed to carry its burden of showing that H.B. 2023 was
enacted with discriminatory intent. We reject DNC’s urging
to toss out the district court’s findings, reweigh the facts and
reach opposite conclusions. As such, we affirm the district
court.
I
The district court’s order denying DNC’s claims sets forth
the facts in detail, Reagan, 2018 WL 2191664, at *1–9, so we
provide only a brief factual and procedural summary here.
The district court’s factual findings are discussed in detail as
they become relevant to our analysis.
A
We begin by reviewing Arizona’s election system.
Arizona permits voters to vote either in person on Election
8 DNC V. REAGAN
Day or by early mail ballot. Id. at *7, *12. The vast majority
of Arizonans vote by early ballot. For instance, only about
20 percent of the votes in the 2016 general election were cast
in person. Id. at *12.
Most Arizona counties conduct in-person voting through
a precinct-based system. Arizona gives each county the
responsibility to “establish a convenient number of election
precincts in the county and define the boundaries of [those]
precincts.” Ariz. Rev. Stat. § 16-411(A). Before an election,
the County Board of Supervisors (the County’s legislative
unit) must designate at least one polling place per precinct.
Id. § 16-411(B). Arizona law provides some flexibility for
counties to combine precincts if each county’s board of
supervisors makes specific findings. See id. § 16-411(B)(2).
Arizona has long required in-person voters to cast their
ballots in their assigned precinct and has enforced this
system, since at least 1970, by counting only votes cast in the
correct precinct. See Ariz. Rev. Stat. §§ 16-122, 16-135, 16-
584 (codified in 1979); 1970 Ariz. Sess. Laws, ch. 151, § 64
(amending Ariz. Rev. Stat. § 16-895); Ariz. Rev. Stat. § 16-
102 (1974). If an Arizona voter’s name does not appear on
the voting register at the polling place on Election Day (either
because the voter recently moved or due to inaccuracies in the
official records), the voter may vote only by provisional
ballot. Ariz. Rev. Stat. §§ 16-122, 16-135, 16-584. Later, the
state reviews all provisional ballots and counts those votes
cast by voters confirmed to be eligible to vote. Id. §§ 16-
135(D), 16-584(D). A provisional ballot cast outside of the
voter’s correct precinct is not counted. Id. (As mentioned
above, DNC refers to Arizona’s rejection of improperly cast
ballots as Arizona’s OOP policy.)
DNC V. REAGAN 9
Recently, Arizona has permitted counties to choose
between the traditional precinct model and “voting centers,”
wherein voters from multiple precincts can vote at a single
location. Id. § 16-411(B)(4). Each voting center must be
equipped to print a specific ballot, correlated to each voter’s
particular district, that includes all races in which the voter is
eligible to vote. Reagan, 2018 WL 2191664, at *9. Six rural
and sparsely populated counties—Graham, Greenlee,
Cochise, Navajo, Yavapai, and Yuma—have adopted the
voting center model. Id.As noted above, most Arizona voters (roughly 80 percent
in the 2016 general election) do not vote in person. Arizona
law permits “[a]ny qualified elector” to “vote by early
ballot.” Ariz. Rev. Stat. § 16-541(A).3 Early voting can
occur by mail or in person at an on-site early voting location
in the 27 days before an election. See id. § 16-542(D). All
Arizona counties operate at least one on-site early voting
location. Reagan, 2018 WL 2191664, at *7. Voters may also
return their ballots in person at any polling place without
waiting in line, and several counties additionally provide
special drop boxes for early ballot submission. Id.Moreover, voters can vote early by mail, either for an
individual election or by having their names added to a
permanent early voting list. Id. An early ballot is mailed to
every person on that list as a matter of course no later than the
first day of the early voting period. Ariz. Rev. Stat. § 16-
544(F). Voters may return their early ballot by mail at no
cost, id. § 16-542(C), but it must be received by 7:00 p.m. on
Election Day, id. § 16-548(A).
3
A “qualified elector” is any person at least eighteen years of age on
or before the date of the election “who is properly registered to vote.”
Ariz. Rev. Stat. § 16-121(A).
10 DNC V. REAGAN
Since 1992, Arizona has prohibited any person other than
the voter from having “possession of that elector’s unvoted
absentee ballot.” See 1991 Ariz. Legis. Serv. Ch. 310, § 22
(S.B. 1390) (West). In 1997, the Arizona legislature
expanded that prohibition to prevent any person other than
the voter from having possession of any type of unvoted early
ballot. See 1997 Ariz. Legis. Serv. Ch. 5, § 18 (S.B. 1003)
(West) (codified at Ariz. Rev. Stat. § 16-542(D)). As
explained by the Supreme Court of Arizona, regulations on
the distribution of absentee and early ballots advance
Arizona’s constitutional interest in secret voting, see Ariz.
Const. art. VII, § 1, “by setting forth procedural safeguards to
prevent undue influence, fraud, ballot tampering, and voter
intimidation,” Miller v. Picacho Elementary Sch. Dist. No.
33, 179 Ariz. 178, 180 (1994) (en banc).
Arizona has long supplemented its protection of the early
voting process through the use of penal provisions, as set
forth in section 16-1005 of Arizona’s statutes. For example,
since 1999, “[a]ny person who knowingly marks a voted or
unvoted ballot or ballot envelope with the intent to fix an
election for that person’s own benefit . . . is guilty of a class
5 felony.” 1999 Ariz. Legis. Serv. Ch. 32, § 12 (S.B. 1227)
(codified as amended at Ariz. Rev. Stat. § 16-1005(A)). And
in 2011, Arizona made offering or providing any
consideration to acquire a voted or unvoted early ballot a
class 5 felony. See 2011 Ariz. Legis. Serv. Ch. 105, § 3 (S.B.
1412) (codified at Ariz. Rev. Stat. § 16-1005(B)).
Since at least 2002, individuals and groups in Arizona
have collected early ballots from voters. While distribution
of early ballots had been strictly regulated for decades, see
1997 Ariz. Legis. Serv. Ch. 5, § 18 (S.B. 1003) (West)
(codified at Ariz. Rev. Stat. § 16-542(D)), ballot collection by
DNC V. REAGAN 11
third parties was not. This changed in 2016, when Arizona
revised its early voting process, as defined in section 16-
1005, by enacting H.B. 2023 to regulate the collection of
early ballots. This law added the following provisions to the
existing penalties for persons abusing the early voting
process:
H. A person who knowingly collects voted or
unvoted early ballots from another person is
guilty of a class 6 felony. An election official,
a United States postal service worker or any
other person who is allowed by law to
transmit United States mail is deemed not to
have collected an early ballot if the official,
worker or other person is engaged in official
duties.
I. Subsection H of this section does not apply
to:
1. An election held by a special taxing
district formed pursuant to title 48 for the
purpose of protecting or providing
services to agricultural lands or crops and
that is authorized to conduct elections
pursuant to title 48.
2. A family member, household member
or caregiver of the voter. For the purposes
of this paragraph:
(a) “Caregiver” means a person who
provides medical or health care
assistance to the voter in a residence,
12 DNC V. REAGAN
nursing care institution, hospice
facility, assisted living center, assisted
living facility, assisted living home,
residential care institution, adult day
health care facility or adult foster care
home.
(b) “Collects” means to gain
possession or control of an early
ballot.
(c) “Family member” means a person
who is related to the voter by blood,
marriage, adoption or legal
guardianship.
(d) “Household member” means a
person who resides at the same
residence as the voter.
Ariz. Rev. Stat. § 16-1005(H)–(I).
This amendment to section 16-1005 makes it a felony for
third parties to collect early ballots from voters unless the
collector falls into one of several exceptions. See id. The
prohibition does not apply to election officials acting as such,
mail carriers acting as such, any family members, any persons
who reside at the same residence as the voter, or caregivers,
defined as any person who provides medical or health care
assistance to voters in a range of adult residences and
facilities. Id. § 16-1005(I)(2). H.B. 2023 does not provide
that ballots collected in violation of this statute are
disqualified or disregarded in the final election tally.
DNC V. REAGAN 13
B
We next turn to the history of this case. In April 2016,
DNC and other appellants sued the state of Arizona,
challenging H.B. 2023 and Arizona’s OOP policy.
In separate motions, DNC sought preliminary injunctions
against H.B. 2023 and the OOP policy, respectively. On
September 23, 2016, the district court denied the motion to
preliminarily enjoin enforcement of H.B. 2023. The district
court subsequently denied DNC’s motion for a preliminary
injunction pending appeal. On October 11, 2016, the district
court likewise declined to issue a preliminary injunction with
respect to the OOP policy.
DNC appealed both denials. A motions panel denied
DNC’s request to issue an injunction pending appeal of the
district court’s ruling on the challenge to H.B. 2023, but the
two appeals were expedited and calendared for arguments
before a three-judge panel on October 19 and 26, 2016,
respectively. The expedited appeals proceeded at a rapid
pace. On October 28, 2016, a divided panel affirmed the
district court’s denial of a preliminary injunction as to H.B.
2023. See Feldman v. Ariz. Sec’y of State’s Office (Feldman
I), 840 F.3d 1057 (9th Cir. 2016). The case was called en
banc the same day, and on November 2, 2016—after a highly
compressed five-day memo exchange and voting period—a
majority of the active judges on this court voted to hear the
appeal of the district court’s denial of a preliminary
injunction against H.B. 2023 en banc. Two days later, the en
banc panel reconsidered the motions panel’s earlier denial of
an injunction pending appeal and granted DNC’s motion for
an injunction pending a resolution of the preliminary
injunction appeal. See Feldman v. Ariz. Sec’y of State’s
14 DNC V. REAGAN
Office (Feldman III), 843 F.3d 366 (9th Cir. 2016) (en banc).
In so doing, the six-judge majority stated that “we grant the
motion for a preliminary injunction pending appeal
essentially for the reasons provided in the dissent in [Feldman
I].” Id. at 367 (citing Feldman I, 840 F.3d at 1085–98). The
Supreme Court summarily stayed this injunction pending
appeal the next day. See Ariz. Sec’y of State’s Office v.
Feldman, 137 S. Ct. 446, 446 (2016) (mem.) (“The injunction
issued by the United States Court of Appeals for the Ninth
Circuit on November 4, 2016, in case No. 16-16698, is stayed
pending final disposition of the appeal by that court.”).4
The appeal of the district court’s denial of a preliminary
injunction as to the OOP policy also proceeded apace. On
November 2, 2016, a divided panel affirmed the district court.
See Feldman v. Ariz. Sec’y of State’s Office (Feldman II),
842 F.3d 613 (9th Cir. 2016). Two days later a majority of
active judges voted to hear the OOP policy appeal en banc,
and the en banc panel denied DNC’s motion for an injunction
pending resolution of the appeal. See Feldman v. Ariz. Sec’y
4
Although Feldman III referenced the dissent in Feldman I, it did not
incorporate it nor adopt any specific reasoning from the dissenting
opinion, Because Feldman III did not provide a “fully considered
appellate ruling on an issue of law,” we are guided by our general rule that
“decisions at the preliminary injunction phase do not constitute the law of
the case.” Ranchers Cattlemen Action Legal Fund United Stockgrowers
of Am. v. U.S. Dept. of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007) (first
quoting 18 Charles Alan Wright & Arthur R. Miller Federal Practice and
Procedure § 4478.5 (2002); then citing S. Or. Barter Fair v. Jackson
County, 372 F.3d 1128, 1136 (9th Cir. 2004)). Moreover, the Supreme
Court’s immediate stay of Feldman III’s injunction pending appeal
“undercut[s] [Feldman III’s] theory or reasoning” to a significant extent.
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
Therefore, we conclude that Feldman III’s reference to the dissent in
Feldman I does not make that dissent law of the case or of the circuit.
DNC V. REAGAN 15
of State’s Office, 840 F.3d 1165 (9th Cir. 2016) (mem.) (per
curiam) (en banc). As a result of these proceedings, both
H.B. 2023 and the OOP policy remained in effect for the
November 2016 election. The en banc panel did not reach the
merits of DNC’s appeal of the district court’s denial of the
preliminary injunctions against H.B. 2023 and the OOP
policy.5
DNC’s challenge proceeded in district court. DNC
argued that H.B. 2023 imposed undue burdens on the right to
vote, in violation of the First and Fourteenth Amendments.
DNC also claimed that H.B. 2023 violated § 2 of the VRA
because it resulted in a discriminatory burden on voting rights
prohibited by that section. Finally, DNC claimed that H.B.
2023 was enacted with discriminatory intent, in violation of
the Fifteenth Amendment. DNC raised similar claims that the
OOP policy imposed an unconstitutional burden on the right
to vote and violated § 2 of the VRA, but did not claim that the
OOP policy had a discriminatory purpose.
The district court developed an extensive factual record
on all five claims. Over the course of a ten-day bench trial in
October 2017, the parties presented live testimony from
7 expert witnesses and 33 lay witnesses, in addition to the
testimony of 11 witnesses by deposition. Reagan, 2018 WL
2191664, at *2–7. The district court also considered over
230 exhibits admitted into evidence.
Seven months later, on May 10, 2018, the district court
issued its amended 83-page findings of fact and conclusions
5
After the district court rendered its decision on the merits and final
judgment, the en banc panel dismissed the interlocutory appeals of the
denied preliminary injunctions as moot.
16 DNC V. REAGAN
of law, holding that DNC had failed to prove its constitutional
and VRA claims. Reagan, 2018 WL 2191664.
DNC timely appealed that same day. Fed. R. App. P.
4(a)(1)(B). It also moved for an injunction pending
resolution of its appeal. The en banc panel voted not to
exercise jurisdiction over the appeal, and the case was
assigned to the original three-judge panel. We granted
DNC’s motion to expedite the appeal in light of the upcoming
2018 election.6
II
The district court exercised jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291.
Following a bench trial, we review de novo the district
court’s conclusions of law and review its findings of fact for
clear error. Navajo Nation v. U.S. Forest Serv., 535 F.3d
1058, 1067 (9th Cir. 2008) (en banc). “The clear error
standard is significantly deferential.” Cohen v. U.S. Dist.
Court, 586 F.3d 703, 708 (9th Cir. 2009). “[T]o be clearly
erroneous, a decision must . . . strike [a court] as wrong with
the force of a five-week old, unrefrigerated dead fish.”
Ocean Garden, Inc. v. Marktrade Co., Inc., 953 F.2d 500, 502
(9th Cir. 1991) (quoting Parts and Elec. Motors, Inc. v.
Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)). “This
standard plainly does not entitle a reviewing court to reverse
the finding of the trier of fact simply because it is convinced
6
We deferred consideration of DNC’s motion for an injunction
pending appeal. Because we affirm the district court, we now DENY that
motion as moot.
DNC V. REAGAN 17
that it would have decided the case differently.” Bessemer
City, 470 U.S. at 573. “If the district court’s account of the
evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.” Id. at 573–74. That
is, “[w]here there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly
erroneous.” Id. at 574.
III
We first address DNC’s challenges to H.B. 2023. DNC
argues that (1) H.B. 2023 unduly burdens the right to vote, in
violation of the First and Fourteenth Amendments; (2) H.B.
2023 disproportionately impacts minority voters in a manner
that violates § 2 of the VRA; and (3) H.B. 2023 was enacted
with discriminatory intent, in violation of the Fifteenth
Amendment.7 We address each claim in turn.
A
We begin with DNC’s claim that H.B. 2023 violates
Arizona voters’ First and Fourteenth Amendment rights.
1
The Constitution vests the States with a “broad power to
prescribe the ‘Times, Places and Manner of holding Elections
7
DNC does not “specifically and distinctly” argue that H.B. 2023 was
enacted with a discriminatory purpose in violation of § 2 of the VRA, and
therefore we do not consider this issue. Greenwood v. FAA, 28 F.3d 971,
977 (9th Cir. 1994).
18 DNC V. REAGAN
for Senators and Representatives.’” Clingman v. Beaver,
544 U.S. 581, 586 (2005) (quoting U.S. Const., art. 1, § 4, cl.
1). This power under the Elections Clause to regulate
elections for federal offices “is matched by state control over
the election process for state offices.” Id. “Governments
necessarily ‘must play an active role in structuring
elections,’” Pub. Integrity All., Inc. v. City of Tucson,
836 F.3d 1019, 1024 (9th Cir. 2016) (en banc) (quoting
Burdick v. Takushi, 504 U.S. 428, 433 (1992)), and “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,” Storer v. Brown, 415 U.S. 724, 730 (1974).
However, when a state exercises its power and discharges its
obligation “[t]o achieve these necessary objectives,” the
resulting laws “inevitably affect[]—at least to some
degree—the individual’s right to vote and his right to
associate with others for political ends.” Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983).
Because a state has the authority and obligation to
manage the election process, “not all election laws impose
constitutionally suspect burdens on that right.” Short v.
Brown, 893 F.3d 671, 676 (9th Cir. 2018). There is no
“‘litmus-paper test’ that will separate valid from invalid
restrictions.” Anderson, 460 U.S. at 789 (quoting Storer,
415 U.S. at 730). Rather, “a more flexible standard applies.”
Burdick, 504 U.S. at 434. “A court considering a challenge
to a state election law must weigh [1] ‘the character and
magnitude of the asserted injury to the rights protected by the
First and Fourteenth Amendments that the plaintiff seeks to
vindicate’ against [2] ‘the precise interests put forward by the
State as justifications for the burden imposed by its rule,’
taking into consideration [3] ‘the extent to which those
DNC V. REAGAN 19
interests make it necessary to burden the plaintiff’s rights.’”
Id. (quoting Anderson, 460 U.S. at 789). This framework is
generally referred to as the Anderson/Burdick balancing test.
The first prong of this test, the magnitude of the burden
imposed on voters by the election law, “is a factual question
on which the plaintiff bears the burden of proof.”
Democratic Party of Haw. v. Nago, 833 F.3d 1119, 1122–24
(9th Cir. 2016) (citing Cal. Democratic Party v. Jones,
530 U.S. 567 (2000)); Gonzalez, 485 F.3d at 1050 (noting
that whether an election law imposes a severe burden is an
“intense[ly] factual inquiry”). In addition to considering the
burden on the electorate as a whole, courts may also consider
whether the law has a heavier impact on subgroups, Pub.
Integrity All., 836 F.3d at 1025 n.2, but only if the plaintiff
adduces evidence sufficient to show the size of the subgroup
and quantify how the subgroup’s special characteristics
makes the election law more burdensome. Thus, Crawford v.
Marion County Election Board acknowledged the argument
that a voter photo identification (ID) requirement might
impose a heavier burden on “homeless persons[,] persons
with a religious objection to being photographed,” and those
“who may have difficulty obtaining a birth certificate,” but
declined to undertake a subgroup analysis because the
evidence was insufficient to show the size of such subgroups
or to quantify the additional burden on those voters. 553 U.S.
181, 199, 200–03 (2008). Accordingly, it is an error to
consider “the burden that the challenged provisions uniquely
place” on a subgroup of voters in the absence of “quantifiable
evidence from which an arbiter could gauge the frequency
with which this narrow class of voters has been or will
become disenfranchised as a result of [those provisions].”
Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 631
(6th Cir. 2016).
20 DNC V. REAGAN
After determining the severity of the burden, the court
must then identify the state’s justifications for the law, and
consider whether those interests make it “necessary to burden
the plaintiff’s rights.” Anderson, 460 U.S. at 789. As we
have emphasized, this inquiry does not necessarily mean that
the state is “required to show that its system is narrowly
tailored—that is, is the one best tailored to achieve its
purposes.” Dudum v. Arntz, 640 F.3d 1098, 1114 (9th Cir.
2011). Rather, this step involves a “balancing and means-end
fit framework.” Ariz. Green Party v. Reagan, 838 F.3d 983,
988 (9th Cir. 2016) (quoting Pub. Integrity All., 836 F.3d at
1024). The severity of the burden dictates the closeness of
the fit required, and the more severe the burden, the “more
compelling the state’s interest must be.” Id.
By contrast, “when a state election law provision imposes
only ‘reasonable, nondiscriminatory restrictions’ upon the
First and Fourteenth Amendment rights of voters, ‘the State’s
important regulatory interests are generally sufficient to
justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting
Anderson, 460 U.S. at 788); see also Ariz. Green Party,
838 F.3d at 988. In conducting this analysis, we are
particularly deferential when “the challenge is to an electoral
system, as opposed to a discrete election rule.” Dudum,
640 F.3d at 1114.
2
Applying the Anderson/Burdick framework, the district
court found that H.B. 2023 did not unconstitutionally burden
the right to vote. First, the court found that H.B. 2023 posed
only a minimal burden on Arizona voters as a whole. Twenty
percent of Arizonans voted in person in the prior 2016
general election, and so were wholly unaffected. Reagan,
DNC V. REAGAN 21
2018 WL 2191664, at *12. As to the 80 percent of Arizonans
who voted by mail, the district court noted that there were no
records of the number of voters who returned their ballots
with the assistance of third parties. Id. After presenting
various witnesses on this issue, DNC’s counsel’s “best
estimate of the number of voters affected by H.B. 2023 based
on the evidence at trial” was “thousands . . . but I don’t have
a precise number of that.” Id. The court found that the
evidence suggested that “possibly fewer than 10,000 voters
are impacted” out of over 2.3 million voters. Id. Therefore,
the vast majority of Arizona voters were unaffected by the
law. Id.Second, the district court found that H.B. 2023 imposed
a minimal burden on even the small number of voters who
had previously returned ballots with the assistance of third
parties. Because “[e]arly voters may return their own ballots,
either in person or by mail, or they may entrust a family
member, household member, or caregiver to do the same,”
the burden imposed by H.B. 2023 “is the burden of traveling
to a mail box, post office, early ballot drop box, any polling
place or vote center (without waiting in line), or an authorized
election official’s office, either personally or with the
assistance of a statutorily authorized proxy, during a 27-day
early voting period.” Id. Therefore, the court found that H.B.
2023 “does not increase the ordinary burdens traditionally
associated with voting.” Id.The district court then considered whether DNC had
shown that H.B. 2023 had a more severe impact on particular
subgroups of Arizona voters who have some common
circumstance that would cause them to face special
difficulties in voting without ballot collection services, such
as “communities that lack easy access to outgoing mail
22 DNC V. REAGAN
services; the elderly, homebound, and disabled voters;
socioeconomically disadvantaged voters who lack reliable
transportation; [and] voters who have trouble finding time to
return mail because they work multiple jobs or lack childcare
services.”8 Id. at *14. The court determined that the
plaintiffs had not made such a showing, because there was
“insufficient evidence from which to measure the burdens on
discrete subsets of voters” or to “quantify with any degree of
certainty” how many voters had previously used ballot
collection services. Id. Moreover, the district court could not
determine the number of those voters who used those services
merely “out of convenience or personal preference, as
opposed to meaningful hardship,” and therefore could not
evaluate whether any of them would face a substantial burden
in relying on other means of voting offered by Arizona. Id.Having identified these major gaps in DNC’s evidence,
the district court evaluated the evidence presented.
According to the district court, “the evidence available
largely shows that voters who have used ballot collection
services in the past have done so out of convenience or
personal preference.” Id. The court discussed five voters
who testified, Nellie Ruiz, Carolyn Glover, Daniel Magos,
Carmen Arias, and Marva Gilbreath, explained their
individual circumstances and noted that each had successfully
returned their ballot except for Gilbreath, who simply forgot
8
DNC also identified as a potential subgroup “voters who are
unfamiliar with the voting process and therefore do not vote without
assistance or tend to miss critical deadlines.” Reagan, 2018 WL 2191664,
at *14. The district court found that remembering relevant deadlines was
not a burden on the right to vote, and therefore not a basis for finding a
special burden. Id.DNC V. REAGAN 23
to timely mail her ballot.9 Id. at *15. The district court also
found that Arizona provides accommodations to subgroups of
voters whose special characteristics might lead them to place
a greater reliance on ballot collection. Id. at *14.
Specifically, for voters with mobility issues, Arizona requires
counties to provide special election boards, which, upon
timely request, will deliver a ballot to an ill or disabled voter.
Id. While finding that “relatively few voters are aware of this
service,” the district court pointed out that DNC could
educate voters as to its availability. Id. Further, Arizona
permits polling places to offer curbside voting, allowing
voters to pull up to the curb by a polling place and have an
election official assist them at their car. Id. Arizona law also
requires employers to give their employees time off to vote in
person if an employee is scheduled for an Election Day shift
without at least a three-hour window to vote. Id. at *15.
Finally, the district court noted the many exceptions in H.B.
2023, allowing voters to give their early ballots to family
members, household members, caregivers, or election
officials. Id.Because the court found that H.B. 2023 imposed only a
minimal burden on Arizonans’ First and Fourteenth
Amendment rights, it held that defendants had to show only
that H.B. 2023 served important regulatory interests. As
summarized by the district court, Arizona advanced two
regulatory interests: (1) “that H.B. 2023 is a prophylactic
measure intended to prevent absentee voter fraud by creating
9
The district court expressed “concerns about the credibility” of the
deposition testimony of a deceased witness, Victor Vasquez. Reagan,
2018 WL 2191664, at *16. “When findings are based on determinations
regarding the credibility of witnesses, Rule 52(a) demands even greater
deference to the trial court’s findings.” Bessemer City, 470 U.S. at 575.
24 DNC V. REAGAN
a chain of custody for early ballots and minimizing the
opportunities for ballot tampering, loss, and destruction”; and
(2) “that H.B. 2023 improves and maintains public
confidence in election integrity.” Id. at *18. The court found
that these interests were important. Id. at *19.
Turning to a means-end fit, the court found that given the
de minimis nature of the burden imposed by H.B. 2023, it did
not need to be “the most narrowly tailored provision,” so long
as it reasonably advanced the state’s interests. Id. at *20.
Finding that it did so, the court held that H.B. 2023 did not
violate the First and Fourteenth Amendments. Id. at *18–20.
3
We conclude that the district court did not err in its
Anderson/Burdick analysis. First, the district court’s
determination that H.B. 2023 imposes only a de minimis
burden on Arizona voters was not clearly erroneous. See
Crawford, 553 U.S. at 198 (holding that “the inconvenience”
of the process of going to the state Bureau of Motor Vehicles
to obtain an ID “does not qualify as a substantial burden on
the right to vote, or even represent a significant increase over
the usual burdens of voting”). DNC does not directly dispute
this conclusion.
Rather, DNC argues that H.B. 2023 imposes severe
burdens on subgroups of voters unable to vote without the
third-party ballot collection services prohibited by H.B. 2023.
This argument fails. The district court did not clearly err in
finding that there was “insufficient evidence from which to
measure the burdens on discrete subsets of voters,” Reagan,
2018 WL 2191664, at *14, which is a threshold requirement
to conducting a subgroup analysis. See Crawford, 553 U.S.
DNC V. REAGAN 25
at 200–03. The record shows that DNC’s witnesses could not
specify how many voters would have been unable to vote
without ballot collection services. For instance, a Maricopa
County Democratic Party organizer, Leah Gillespie, testified
that some voters who used ballot collection services told her
that they had no other means of voting, but her only example
was of a friend whose husband was supposed to deliver her
ballot but forgot it at home.10 Similarly, Arizona State
Senator Martin Quezada stated that his campaign received
ballot collection requests after H.B. 2023 took effect and had
been unable to provide rides to the polling place or other
assistance to all such voters. But he did not know “how many
of those people had family members who could have turned
in their ballot,” and could only give his sense “that several of
them lacked anybody” who could do so. Moreover, DNC
failed “to produce a single voter to testify that H.B. 2023’s
limitations on who may collect an early mail ballot would
make voting significantly more difficult for her.” Only one
voter (Marva Gilbreath) testified that she did not vote in the
2016 general election, because she “was in the process of
moving,” had no mailbox key due to “misunderstandings with
the realtor and things like that,” and “didn’t know where the
voting place was.” This witness’s highly idiosyncratic
circumstances do not indicate that H.B. 2023 imposes a
severe burden on an identifiable subgroup of voters. Rather,
burdens “arising from life’s vagaries are neither so serious
nor so frequent as to raise any question about the
constitutionality of [the challenged law].” Id. at 197.
10
Of course, had the husband not forgot, but had delivered the vote,
there would have been no violation of H.B. 2023, which exempts family
members. Ariz. Rev. Stat. § 16-1005(H)–(I).
26 DNC V. REAGAN
In sum, DNC’s evidence falls far short of the necessary
“quantifiable evidence from which an arbiter could gauge the
frequency with which this narrow class of voters has been or
will become disenfranchised as a result of [H.B. 2023].” Ne.
Ohio Coal., 837 F.3d at 631; cf. Crawford, 553 U.S. at201–02 (declining to conduct a subgroup analysis despite
evidence of one indigent voter who could not (or would not)
pay for a birth certificate and one homeless woman who was
denied a photo ID card because she lacked an address.).
The dissent disagrees, but its disagreement here—as with
the district court’s opinion generally—is based on throwing
out the district court’s factual findings, reweighing the
evidence, and reaching its own factual conclusions. This
approach is not only contrary to the most basic principles of
appellate review, but is an approach that the Supreme Court
has frequently warned us to avoid. See Bessemer City,
470 U.S. at 574–75 (holding that the rationale for deference
to the trial court’s finding of fact is based not only on “the
superiority of the trial judge’s position to make
determinations of credibility,” but also on the judge’s
expertise in determination of fact, and ensuring that “the trial
on the merits should be ‘the main event . . . rather than a
tryout on the road’”) (quoting Wainwright v. Sykes, 433 U.S.
72, 90 (1977)).
Here, for instance, the dissent seeks to revisit the district
court’s conclusion that DNC failed to carry its burden of
showing that H.B. 2023 imposed a heavy burden on Native
Americans. Dissent at 121–22. Conducting its own factual
evaluation, the dissent claims that H.B. 2023 imposes a heavy
burden on Native Americans because a majority of them lack
home mail service. Dissent at 121. The dissent then
speculates that many Native Americans may have trouble
DNC V. REAGAN 27
getting to post offices, and may have different family
relationships than are indicated in H.B. 2023. Dissent at
121–22. Of course, the dissent’s determination that “it would
have decided the case differently” does not make the district
court’s findings clearly erroneous. Bessemer City, 470 U.S.
at 573. Indeed, even evidence that third-party ballot
collection is more useful to Native Americans than to other
voters does not compel the conclusion that H.B. 2023
imposes a heavy burden on Native Americans’ ability to vote.
Most tellingly, the dissent does not meaningfully address the
district court’s most notable factual finding: that not a single
voter testified at trial that H.B. 2023’s limitations would
make voting significantly more difficult. Although the
dissent insists that there was evidence to this effect, Dissent
at 122, it cites only to the testimony of a third-party ballot
collector who conceded that his organization had not
attempted to determine whether the voters they served could
have returned their ballots some other way. There is thus no
basis for holding that the district court’s findings were clearly
erroneous, and the dissent errs in arguing otherwise.
The dissent also faults the district court’s decision not to
conduct a subgroup analysis because it “could not determine
a precise number of voters that had relied on ballot collection
in the past or predict a likely number in the future.” Dissent
at 122. According to the dissent, this decision was based on
a misunderstanding of Crawford, and therefore constitutes
legal error. We disagree. The district court correctly relied
on Crawford in concluding that “on the basis of the evidence
in the record it [was] not possible to quantify either the
magnitude of the burden on this narrow class of voters or the
portion of the burden imposed on them that [was] fully
justified.” Reagan, 2018 WL 2191664, at *14 (quoting
Crawford, 553 U.S. at 200). Accordingly, the court properly
28 DNC V. REAGAN
held that DNC did not carry its burden of showing the
existence of a relevant subgroup.
Nor did the district court clearly err in finding that any
burden imposed by H.B. 2023 was further minimized by
Arizona’s many accommodations available for those
subgroups of voters that DNC claims are burdened by H.B.
2023.11 Reagan, 2018 WL 2191664, at *14. For instance, the
district court reasonably found that the subgroup of voters
who are “confined as the result of a continuing illness or
physical disability,” Ariz. Rev. Stat. § 16-549(C), could
request ballots from special election boards, and the burden
of doing so was minimal, see Short, 893 F.3d at 677 (“To the
extent that having to register to receive a mailed ballot could
be viewed as a burden, it is an extremely small one, and
certainly not one that demands serious constitutional
scrutiny.”). The district court did not clearly err in finding
that it was irrelevant whether voters were widely aware of
this alternative, as nothing prevented DNC from informing
voters of and facilitating this procedure. Reagan, 2018 WL
2191664, at *14.
We conclude that the district court did not clearly err in
finding that DNC had failed both to quantify the subgroups
purportedly burdened by H.B. 2023 and to show that
Arizona’s alternatives did not ameliorate any burden on them.
Accordingly, there was no clear error in the district court’s
finding that H.B. 2023 imposed only a minimal burden.
11
Given that DNC did not meet its burden of showing how large the
subgroup of specially burdened voters might be, see Democratic Party of
Haw., 833 F.3d at 1122–24, its unsupported claims that Arizona’s many
accommodations cannot adequately serve an unquantified number of
voters are unpersuasive.
DNC V. REAGAN 29
4
Next, DNC and the dissent contend that the district court
clearly erred in finding that H.B. 2023 serves Arizona’s
important regulatory interests because Arizona did not adduce
any direct evidence of voter fraud. We reject this argument.
DNC does not dispute—nor could it—that Arizona’s
interest in “a prophylactic measure intended to prevent
absentee voter fraud” and to maintain public confidence are
facially important. Id. at *18; see Crawford, 553 U.S. at 196(“There is no question about the legitimacy or importance of
the State’s interest in counting only the votes of eligible
voters.”); Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)
(explaining that “[c]onfidence in the integrity of our electoral
processes is essential to the functioning of our participatory
democracy” and noting “the State’s compelling interest in
preventing voter fraud”).
Further, a state “need not show specific local evidence of
fraud in order to justify preventive measures,” Voting for Am.,
Inc. v. Steen, 732 F.3d 382, 394 (5th Cir. 2013), nor is such
evidence required to uphold a law that imposes minimal
burdens under the Anderson/Burdick framework, see Munro
v. Socialist Workers Party, 479 U.S. 189, 195 (1986)
(explaining that legislatures are “permitted to respond to
potential deficiencies in the electoral process with foresight
rather than reactively”). For example, in Crawford, the
challenged law addressed only in-person voter fraud, and
“[t]he record contain[ed] no evidence of any such fraud
actually occurring in Indiana at any time in its history.”
553 U.S. at 194. Yet the controlling opinion concluded that
the law served Indiana’s interests in preventing fraud, citing
evidence of in-person and absentee voter fraud in other
30 DNC V. REAGAN
jurisdictions and in historical examples. Id. at 195–96 &
nn.11–13. Accordingly, H.B. 2023 serves Arizona’s
important interest in preventing voter fraud even without
direct evidence of ballot collection voter fraud in Arizona.12
The dissent proposes several meritless distinctions
between H.B. 2023 and the voter I.D. law in Crawford. First,
the dissent argues that unlike H.B. 2023, Crawford’s voter
I.D. law was “tied to ‘the state’s interest in counting only the
votes of eligible voters.’” Dissent at 124 (quoting Crawford,
553 U.S. at 196). But H.B. 2023’s regulation of third-party
ballot collectors is likewise tied to the state’s interest in
ensuring the integrity of the vote. As explained by the district
court, Arizona could reasonably conclude that H.B. 2023
reduced “opportunities for early ballots to be lost or
destroyed” by limiting the possession of early ballots to
“presumptively trustworthy proxies,” and also lessened the
potential for pressure or intimidation of voters, and other
forms of fraud and abuse. Reagan, 2018 WL 2191664, at
*20; see infra at 32–33. Second the dissent argues that
Crawford is distinguishable because the legislature in that
case was motivated in-part by “legitimate concerns,” while
here the Arizona legislature was “motivated by
discriminatory intent,” or by solely partisan interests. Dissent
12
DNC’s reliance on a vacated Sixth Circuit opinion is unpersuasive.
See Ohio State Conference of the NAACP v. Husted, 768 F.3d 524 (6th
Cir. 2014), vacated, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1,
2014). The Sixth Circuit has explained that any persuasive value in Ohio
State Conference’s analysis of this point is limited to cases involving
“significant although not severe” burdens, Ohio Democratic Party v.
Husted, 834 F.3d 620, 635 (6th Cir. 2016) (quoting Ohio State
Conference, 768 F.3d at 539), and not those involving “minimal” burdens,
id. (explaining that the district court’s reliance on Ohio State Conference
was “not sound”).
DNC V. REAGAN 31
at 124. Again, we reject the dissent’s factual findings
because the district court found that the legislature was not
motivated by discriminatory intent and only partially
motivated by partisan considerations, and these findings are
not clearly erroneous. Moreover, a legislature may act on
partisan considerations without violating the constitution.
See infra at 53–54.
Similarly, a court can reasonably conclude that a
challenged law serves the state’s interest in maintaining
“public confidence in the integrity of the electoral process,”
even in the absence of any evidence that the public’s
confidence had been undermined. Crawford, 553 U.S. at 197.
As several other circuits have recognized, it is “practically
self-evidently true” that implementing a measure designed to
prevent voter fraud would instill public confidence. Ohio
Democratic Party v. Husted, 834 F.3d 620, 633 (6th Cir.
2016) (citing Crawford, 553 U.S. at 197); see Frank v.
Walker, 768 F.3d 744, 750 (7th Cir. 2014) (noting that
Crawford took “as almost self-evidently true” the relationship
between a measure taken to prevent voter fraud and
promoting voter confidence). The district court did not clearly
err in finding that H.B. 2023 also serves this important state
interest.
5
DNC next argues that Arizona could have used less
burdensome means to pursue its regulatory interests and H.B.
2023 could have been designed more effectively. This
argument also fails. Burdick expressly declined to require
that restrictions imposing minimal burdens on voters’ rights
be narrowly tailored. See 504 U.S. at 433. Consistent with
Burdick, we upheld an election restriction that furthered the
32 DNC V. REAGAN
interest of “ensuring local representation by and geographic
diversity among elected officials” even though less-restrictive
means could have achieved the same purposes. Pub. Integrity
All., 836 F.3d at 1028. Similarly, in Arizona Green Party, we
rejected the argument that the state must adopt a system of
voting deadlines “that is the most efficient possible,” in light
of the “de minimis burden” imposed by the existing
deadlines. 838 F.3d at 992 (citation omitted).
Here, the district court found that H.B. 2023 imposed a
minimal burden, and that it was a reasonable means for
advancing the state’s interests. It concluded that “[b]y
limiting who may possess another’s early ballot, H.B. 2023
reasonably reduces opportunities for early ballots to be lost or
destroyed.” Reagan, 2018 WL 2191664, at *20. The district
court also observed that H.B. 2023 “closely follows,” id., the
recommendation of a bipartisan national commission on
election reform to “reduce the risks of fraud and abuse in
absentee voting by prohibiting ‘third-party’ organizations,
candidates, and political party activists from handling
absentee ballots,” id. (quoting Building Confidence in U.S.
Elections § 5.2 (Sept. 2005)).13 These findings were
13
The district court took judicial notice of the report of the
Commission on Federal Election Reform chaired by former President
Jimmy Carter and former Secretary of State James A. Baker III. Reagan,
2018 WL 2191664, at *20 n.12. The district court noted that the report
was cited favorably in Crawford, which remarked that “[t]he historical
perceptions of the Carter-Baker Report can largely be confirmed.”
553 U.S. at 194 n.10. The relevant portion of the report provides:
Fraud occurs in several ways. Absentee ballots remain
the largest source of potential voter fraud. . . . Absentee
balloting is vulnerable to abuse in several ways: . . .
Citizens who vote at home, at nursing homes, at the
workplace, or in church are more susceptible to
DNC V. REAGAN 33
sufficient to justify the minimal burden imposed by H.B.
2023. DNC’s reliance on Common Cause Indiana v.
Individual Members of the Indiana Election, 800 F.3d 913,
928 (7th Cir. 2015) as requiring a closer means-ends fit is
misplaced. As the Seventh Circuit concluded, the election
law in that case imposed a severe burden on the right to vote,
and therefore it was appropriate to apply strict scrutiny. Id.
at 927.
We therefore affirm the district court’s conclusion that
DNC did not succeed on its Anderson/Burdick claim as to
H.B. 2023.
B
We next consider DNC’s claim that H.B. 2023 violates
§ 2 of the VRA. We begin by providing some necessary legal
background.
pressure, overt and subtle, or to intimidation. Vote
buying schemes are far more difficult to detect when
citizens vote by mail. States therefore should reduce the
risks of fraud and abuse in absentee voting by
prohibiting “third-party” organizations, candidates, and
political party activists from handling absentee ballots.
Building Confidence in U.S. Elections § 5.2 (Sept. 2005),
https://www.eac.gov/assets/1/6/Exhibit%20M.PDF. The district court did
not abuse its discretion in taking judicial notice of the report publicly
available on the website of the U.S. Election Assistance Commission. See
Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) (“We may
take judicial notice of records and reports of administrative bodies.”)
(internal quotation marks and citation omitted). There is no dispute as to
the report’s authenticity or that it contained the cited recommendation, and
DNC was not unfairly surprised, given that counsel indicated at trial that
he was well acquainted with it and its contents.
34 DNC V. REAGAN
1
“Inspired to action by the civil rights movement,”
Congress enacted the Voting Rights Act of 1965 to improve
enforcement of the Fifteenth Amendment.14 Shelby County
v. Holder, 570 U.S. 529, 536 (2013). Section 2 of the Act
forbade all states from enacting any “standard, practice, or
procedure . . . imposed or applied . . . to deny or abridge the
right of any citizen of the United States to vote on account of
race or color.” Id. (quoting Voting Rights Act of 1965, § 2,
79 Stat. 437). Section 5 of the Act prevented states from
making certain changes in voting procedures unless the states
obtained “preclearance” for those changes, meaning they
were approved by either the Attorney General or a court of
three judges. Id. at 537.
“At the time of the passage of the Voting Rights Act of
1965, § 2, unlike other provisions of the Act, did not provoke
significant debate in Congress because it was viewed largely
as a restatement of the Fifteenth Amendment.” Chisom,
501 U.S. at 392. In 1980, black residents of Mobile, Alabama
challenged the city’s at-large method of electing its
commissioners on the ground that it unfairly diluted their
voting strength. City of Mobile v. Bolden, 446 U.S. 55, 58
(1980). A plurality of the Supreme Court held that the
electoral system did not violate § 2 of the VRA because there
was no showing of “purposefully discriminatory denial or
abridgment by government of the freedom to vote ‘on
14
The Fifteenth Amendment provides that “[t]he right of citizens of
the United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition of
servitude,” and authorizes Congress to enforce the provision “by
appropriate legislation.” U.S. Const. amend. XV.
DNC V. REAGAN 35
account of race, color or previous conditions of servitude.’”
Id. at 65.
In response to Bolden, “Congress substantially revised § 2
to make clear that a violation could be proved by showing
discriminatory effect alone.” Thornburg v. Gingles, 478 U.S.
30, 35 (1986). In order to show actionable discriminatory
effect, Congress enacted the “results test,” applied by the
Supreme Court in White v. Regester, 412 U.S. 755 (1973), see
Gingles, 478 U.S. at 35, namely “whether the political
processes are equally open to minority voters.” S. Rep. No.
97-417, at 2 (1982), as reprinted in 1982 U.S.C.C.A.N. 177,
205.
As amended, § 2 of the VRA provides:
§ 10301. Denial or abridgement of right to
vote on account of race or color through
voting qualifications or prerequisites;
establishment of violation
(a) No voting qualification or prerequisite to
voting or standard, practice, or procedure shall
be imposed or applied by any State or political
subdivision in a manner which results in a
denial or abridgement of the right of any
citizen of the United States to vote on account
of race or color, or in contravention of the
guarantees set forth in section 10303(f)(2) of
this title, as provided in subsection (b).
(b) A violation of subsection (a) is established
if, based on the totality of circumstances, it is
shown that the political processes leading to
36 DNC V. REAGAN
nomination or election in the State or political
subdivision are not equally open to
participation by members of a class of citizens
protected by subsection (a) 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. . . .
52 U.S.C. § 10301.
Thus, § 2(a) prohibits a state or political subdivision from
adopting a practice that “results in a denial or abridgement”
of any U.S. citizen’s right to vote on account of race, color,
or membership in a language minority group, “as provided in
subsection (b).” Id. § 10301(a). Subsection (b), in turn,
provides that a plaintiff can establish a violation of § 2(a) if
“based on the totality of circumstances,” the members of a
protected class identified in § 2(a) “have less opportunity than
other members of the electorate to participate in the political
process and to elect representatives of their choice.” Id.
§ 10301(b).
Thornburg v. Gingles further clarified that in analyzing
whether a state practice violates § 2, a court must engage in
a two-step process. First, the court must ask the key question
set forth in § 2(b), whether “as a result of the challenged
practice or structure plaintiffs do not have an equal
opportunity to participate in the political processes and to
elect candidates of their choice.” 478 U.S. at 44 (quoting S.
Rep. No. 97-417, at 28). Second, a court must assess the
impact of the practice on such electoral opportunities in light
of the factors set forth in the Senate Report, which
accompanied the 1982 amendments and “elaborates on the
DNC V. REAGAN 37
nature of § 2 violations and on the proof required to establish
these violations.” Id. at 43–44.15
In the wake of Gingles, some lower courts interpreted the
key question set forth in § 2(b) (whether as a result of the
challenged practice plaintiffs do not have an equal
opportunity to participate in the political process and to elect
candidates of their choice) as “provid[ing] two distinct types
of protection for minority voters.” Chisom, 501 U.S. at 396
(citing League of United Latin Am. Citizens Council No. 4434
v. Clements, 914 F.2d 620, 625 (5th Cir. 1990) (en banc)).
These courts held that a “vote denial” claim, meaning a claim
that a particular state election practice denied or abridged a
minority group’s right to vote, turned on whether members of
that protected class had “less opportunity . . . to participate in
the political process.” By contrast, a “vote dilution” claim,
15
As explained in Gingles, the Senate Factors include the extent of
any history of official discrimination, the use of election practices or
structures that could enhance the opportunity for discrimination, the extent
to which voting is racially polarized, and the extent to which minorities
bear the effects of discrimination in education, employment and health.
478 U.S. at 36–37. The factors are not exclusive, and “the question
whether the political processes are equally open depends upon a searching
practical evaluation of the past and present reality, and on a functional
view of the political process.” Id. at 45 (quoting S. Rep. No. 97-417, at
30 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 208). Because the
“essence of a § 2 claim is that a certain electoral law, practice, or structure
interacts with social and historical conditions to cause an inequality in the
opportunities enjoyed by black and white voters to elect their preferred
representatives,” 478 U.S. at 47, if a court determines that a challenged
practice does not cause unequal opportunities, it need not consider the
practice’s interaction with the Senate Factors. Because we affirm the
district court’s finding that DNC failed to carry its burden of satisfying
step one of the § 2 analysis for either H.B. 2023 or the OOP policy, we do
not review in detail its factual findings that DNC also failed to carry its
burdens at step two.
38 DNC V. REAGAN
meaning a claim that a state election practice diluted the
effectiveness of a minority group’s votes, turned on whether
those members had “less opportunity . . . to elect
representatives of their choice.” Id. at 388, 395–96 (citing
Clements, 914 F.2d at 625).
The Supreme Court flatly rejected this interpretation. In
Chisom, the Supreme Court explained that § 2(b) “does not
create two separate and distinct rights.” Id. at 397. The
Court reasoned that if members of a protected class
established that a challenged practice abridged their
opportunity to participate in the political process, it would be
relatively easy to show they were also unable to elect
representatives of their choice, because “[a]ny abridgment of
the opportunity of members of a protected class to participate
in the political process inevitably impairs their ability to
influence the outcome of an election.” Id. By contrast,
evidence that members of a protected class are unable to elect
representatives of their choice does not necessarily prove they
had less opportunity to participate in the political process. Id.
Accordingly, the Court concluded that the two-pronged
results test required by the 1982 amendment “is applicable to
all claims arising under § 2,” and “all such claims must allege
an abridgment of the opportunity to participate in the political
process and to elect representatives of one’s choice.” Id. at
398; see also Ortiz v. City of Phila. Office of City Comm’rs
Voter Registration Div., 28 F.3d 306, 314 (3d Cir. 1994)
(“Section 2 plaintiffs must demonstrate that they had less
opportunity both (1) to participate in the political process, and
(2) to elect representatives of their choice.” (emphasis added)
(citing Chisom, 501 U.S. at 397)).
In reaching this conclusion, the Chisom majority rejected
Justice Scalia’s argument in dissent that requiring a plaintiff
DNC V. REAGAN 39
to prove both less opportunity to participate and less
opportunity to elect representatives would prevent small
numbers of voters from bringing a § 2 claim. According to
Justice Scalia, the Court should have read “and” in § 2(b) to
mean “or,” so that if “a county permitted voter registration for
only three hours one day a week, and that made it more
difficult for blacks to register than whites, blacks would have
less opportunity ‘to participate in the political process’ than
whites, and § 2 would therefore be violated—even if the
number of potential black voters was so small that they would
on no hypothesis be able to elect their own candidate.”
Chisom, 501 U.S. at 408 (Scalia, J., dissenting). The majority
rejected this argument, however, stating that it had “no
authority to divide a unitary claim created by Congress.” Id.
at 398.16
In light of Chisom, plaintiffs cannot establish a § 2
violation without showing that an electoral practice actually
gives minorities less opportunity to elect representatives of
their choice. This requires plaintiffs to show that the state
election practice has some material effect on elections and
their outcomes. As Gingles explained, “[i]t is obvious that
unless minority group members experience substantial
difficulty electing representatives of their choice, they cannot
prove that a challenged electoral mechanism impairs their
ability ‘to elect.’” 478 U.S. at 48 n.15 (quoting 52 U.S.C.
§ 10301(b)). It is “the usual predictability of the majority’s
16
The majority also rejected Justice Scalia’s “erroneous assumption
that a small group of voters can never influence the outcome of an
election,” Chisom, 501 U.S. at 397 n.24, although it did not explain what
evidence would be necessary to establish that an election practice that
affected only a small group of voters deprived minorities of an equal
opportunity to elect candidates of their choice.
40 DNC V. REAGAN
success” which distinguishes a structural problem “from the
mere loss of an occasional election.” Id. at 51. If an election
practice would generally “not impede the ability of minority
voters to elect representatives of their choice” there is no § 2
violation; rather a “bloc voting majority must usually be able
to defeat candidates supported by a politically cohesive,
geographically insular minority group.” Id. at 48–49.
In a § 2 challenge, a court’s focus must be on the question
whether minorities have less opportunity to elect
representatives of their choice; therefore, evidence that a
particular election practice falls more heavily on minority
than non-minority voters, or that electoral outcomes are not
proportionate to the numbers of minorities in the population,17
is not sufficient by itself to establish a § 2 violation. As we
have previously explained, “a bare statistical showing of
disproportionate impact on a racial minority does not satisfy
the § 2 ‘results’ inquiry.” Salt River, 109 F.3d at 595.
Rather, “plaintiffs must show a causal connection between
the challenged voting practice and [a] prohibited
discriminatory result,” i.e., less opportunity to participate in
the political process and elect representatives. Id. (quoting
Ortiz, 28 F.3d at 312). Because “[n]o state has exactly equal
registration rates, exactly equal turnout rates, and so on, at
every stage of its voting system,” Frank, 768 F.3d at 754,
were it enough to merely point to “some relevant statistical
disparity” implicated by the challenged law, Salt River,
17
The VRA itself states that “nothing in this section establishes a
right to have members of a protected class elected in numbers equal to
their proportion in the population.” 52 U.S.C. § 10301(b).
DNC V. REAGAN 41
109 F.3d at 595, then § 2 would “dismantle every state’s
voting apparatus,” Frank, 768 F.3d at 754.18
If a challenged election practice is not burdensome or the
state offers easily accessible alternative means of voting, a
court can reasonably conclude that the law does not impair
any particular group’s opportunity to “influence the outcome
of an election,” Chisom, 501 U.S. at 397 n.24, even if the
practice has a disproportionate impact on minority voters.
For instance, in Lee v. Virginia State Board of Elections,
plaintiffs argued that Virginia’s photo ID law violated § 2
because more minorities than non-minorities lacked the
necessary IDs, and “the process of obtaining photo IDs
requires those voters to spend time traveling to and from a
registrar’s office.” 843 F.3d 592, 600 (4th Cir. 2016). The
18
Directly contrary to this longstanding precedent, the dissent insists
that if a challenged practice disproportionately impacts members of a
protected class, then it per se constitutes a violation under the first step of
the § 2 test. See Dissent at 83 (arguing that because DNC showed that
minorities are over-represented among those who cast out-of precinct
ballots, “[t]he analysis at step one of the § 2 results test ought to end at this
point”); id. at 83–84 (asserting that the district court’s finding that “OOP
ballot rejection has no meaningfully disparate impact on the opportunities
of minority voters to elect their preferred representatives” is “irrelevant to
step one of § 2’s results test, which focuses solely on the differences in
opportunity and effect enjoyed by groups of voters”); id. at 86 (arguing
that under § 2, a state must correct any disparities that can be attributed to
socioeconomic factors); id. at 118 (arguing that because H.B. 2023
imposes a disparate burden on members of protected classes, it meets step
one). The dissent’s argument is not only contrary to our precedent, but is
inconsistent with the plain language of § 2, and to the Supreme Court’s
interpretation of the VRA. Gingles, 478 U.S. at 51 (§ 2 plaintiffs must
show more than “the mere loss of an occasional election”); Chisom,
501 U.S. at 398 (“For all such [§ 2] claims must allege an abridgement of
the opportunity to participate in the political process and to elect
representatives of one’s choice.”).
42 DNC V. REAGAN
Fourth Circuit rejected this argument. Observing that the
state provided the option for voters without ID to cast a
provisional ballot and obtain a free ID to verify their identity,
the Fourth Circuit reasoned that “every registered voter in
Virginia has the full ability to vote when election day
arrives,” and therefore the election practice “does not
diminish the right of any member of the protected class to
have an equal opportunity to participate in the political
process.” Id.
In sum, in considering a § 2 claim, a court must consider
whether the challenged standard, practice, or procedure gives
members of a protected class less opportunity than others
both “to participate in the political process and to elect
representatives of their choice.” Chisom, 501 U.S. at 397(quoting 52 U.S.C. § 10301(b)). The plaintiff must show a
causal connection between the challenged voting practice and
the lessened opportunity of the protected class to participate
and elect representatives; it is not enough that the burden of
the challenged practice falls more heavily on minority voters.
See Salt River, 109 F.3d at 595. Rather, the challenged
practice must “influence the outcome of an election,” Chisom,
501 U.S. at 397 n.24, and create some “substantial difficulty”
for a protected class to elect representatives of its choice, not
just the “mere loss of an occasional election.” Gingles,
478 U.S. at 48 n.15, 51. If this sort of discriminatory result
is found, then the practice must be considered in light of the
Senate Factors, which are “particularly” pertinent to vote
dilution claims, but “will often be pertinent” to other § 2
claims as well. Id. at 44–45.19
19
Our two-step analysis, derived from the language of § 2, and
Supreme Court precedent, is consistent with the two-step framework
adopted by the Fourth, Fifth, and Sixth Circuits (and, in part, the Seventh
DNC V. REAGAN 43
2
We now turn to the district court’s determination here.
We review the district court’s legal determinations de novo,
Gonzalez v. Arizona, 677 F.3d 383, 406 (9th Cir. 2012), but
defer to “the district court’s superior fact-finding
capabilities,” and review its factual findings for clear error,
Salt River, 109 F.3d at 591.
In analyzing the first step of a § 2 claim, the district court
first found that DNC had provided no quantitative or
statistical evidence showing how many people would be
affected by H.B. 2023 and their minority status, noting that it
was “aware of no vote denial case in which a § 2 violation
has been found without quantitative evidence measuring the
Circuit):
[1] [T]he challenged standard, practice, or procedure
must impose a discriminatory burden on members of a
protected class, meaning that 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, [and]
[2] [T]hat burden must in part be caused by or linked to
social and historical conditions that have or currently
produce discrimination against members of the
protected class.
League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240
(4th Cir. 2014) (citations and internal quotation marks omitted); Veasey
v. Abbott (Veasey I), 830 F.3d 216, 244 (5th Cir. 2016); Ohio Democratic
Party, 834 F.3d at 637; Frank, 768 F.3d at 754–55 (adopting the test “for
the sake of argument”). The first prong tracks the language of § 2, as
interpreted by the Supreme Court, and the second prong implicates the
Senate Factors.
44 DNC V. REAGAN
alleged disparate impact of a challenged law on minority
voters.” Reagan, 2018 WL 2191664, at *30. Despite the lack
of any statistical evidence establishing a disproportionate
impact of H.B. 2023 on minorities, the court stated that it
would not rule against DNC on this ground. Id. at *31.
Instead, it considered DNC’s circumstantial and anecdotal
evidence, and tentatively concluded that “prior to H.B. 2023’s
enactment minorities generically were more likely than non-
minorities to return their early ballots with the assistance of
third parties,” emphasizing the caveat that it could not “speak
in more specific or precise terms than ‘more’ or ‘less.’” Id. at
*33.
Having inferred, based on DNC’s circumstantial and
anecdotal evidence, that H.B. 2023 likely impacted more
minority voters than non-minority voters, the district court
nevertheless concluded that DNC’s evidence did not establish
that H.B. 2023 gave members of a protected class less
opportunity than other members of the electorate both to
participate in the political process and to elect representatives
of their choice. Id. at *32–34. The district court provided
two reasons. First, the court reasoned that the evidence
presented indicated that only “a relatively small number of
voters” used ballot collection services at all. Id. at *33. By
logical extension, that meant that only a small number of
minorities used ballot collection services to vote, and the vast
majority of minority voters “vote without the assistance of
third-parties who would not fall within H.B. 2023’s
exceptions.” Id. Because only a small number of minority
voters were affected to any degree by H.B. 2023, the court
found “it is unlikely that H.B. 2023’s limitations on who may
collect an early ballot cause a meaningful inequality in the
electoral opportunities of minorities as compared to non-
minorities.” Id.DNC V. REAGAN 45
Second, the court reasoned that even for the small number
of minority voters who were affected by H.B. 2023 (i.e., who
would use third-party ballot collectors no longer permitted by
H.B. 2023 if they could), the evidence did not show that H.B.
2023 gave minorities less opportunity than other members of
the electorate to participate in the political process and elect
representatives. Id. at *34. While H.B. 2023 might make it
“slightly more difficult or inconvenient for a small, yet
unquantified subset of voters to return their early ballots,” the
court found that there was no evidence that H.B. 2023 “would
make it significantly more difficult to vote,” particularly
given that no individual voter had testified that H.B. 2023 had
this impact. Id. Therefore, the district court found that DNC
had not carried its burden at the first step of the § 2 analysis.
Id.
Although the district court did not need to reach the
second step, it nonetheless reviewed the relevant Senate
Factors in order to develop the record and concluded that
DNC had likewise failed to carry its burden at step two. Id.
at *36–40.20
3
The district court’s conclusion that the burden on a
protected class of voters is so minimal that it would not give
them less opportunity to elect representatives of their choice
20
As noted above, supra at 37 n.15, because the district court
correctly determined that H.B. 2023 does not satisfy step one of the § 2
analysis, we need not evaluate the district court’s analysis of these factors
in detail. Nevertheless, the district court’s factual conclusions were not
clearly erroneous, and as explained below, see infra at 72 n.32, we reject
the dissent’s factual reevaluations.
46 DNC V. REAGAN
is not clearly erroneous. DNC produced anecdotal testimony
that various sources collected between fifty and a few
thousand ballots but DNC’s counsel could not articulate an
estimate more precise than that “thousands” of people used
this opportunity. Id. at *12. Accordingly, the district court
did not clearly err in estimating that fewer than 10,000 voters
used ballot collection services in each election. Moreover,
the district court even considered a more generous, although
“unjustified,” number of 100,000 voters, but nonetheless
found that this was “relatively small” in relation to the 1.4
million early mail ballots and 2.3 million total voters. Id.
The district court’s view was, at minimum, a permissible
view of the evidence. See Bessemer City, 470 U.S. at 573.
Given these small numbers, the district court did not clearly
err in concluding that the unavailability of third party ballot
collection would have minimal effect on the opportunity of
minority voters to elect representatives of their choice.
Further, as explained in the Anderson/Burdick analysis,
the evidence available indicated that the burden on even those
few minority voters who used third-party ballot collection
was minimal, because those voters had “done so out of
convenience or personal preference, or because of
circumstances that Arizona law adequately accommodates in
other ways,” rather than from necessity. Reagan, 2018 WL
2191664, at *14. As the district court pointed out, not a
single voter testified at trial that H.B. 2023 made it
significantly more difficult to vote, despite the fact that H.B.
2023 was in place for two 2016 elections. Id. at *34.21
21
In arguing that H.B. 2023 had a disparate impact on the ability of
minorities to participate in the political process, the dissent fails to address
this key fact.
DNC V. REAGAN 47
In challenging the district court’s conclusion, DNC and
the dissent argue that under § 2, the total number of votes
affected is not the relevant inquiry; the proper test is whether
any minority votes are burdened. This argument is meritless.
As we have explained, a “bare statistical showing” that an
election practice “has a disproportionate impact on a racial
minority does not satisfy the § 2 ‘results’ inquiry.” Salt
River, 109 F.3d at 595. Rather, the test under § 2 is whether
the “members [of a class of protected citizens] have less
opportunity than other members of the electorate to
participate in the political process and to elect representatives
of their choice.” 52 U.S.C. § 10301(b) (emphasis added).22
To determine whether a challenged law will result in
members of a class having less opportunity to elect
representatives of their choice, a court must necessarily
consider the severity and breadth of the law’s impacts on the
protected class.
Accordingly, we affirm the district court’s ruling that
DNC failed to establish that H.B. 2023 results in less
opportunity for minority voters to participate in the political
process and to elect representatives of their choice, and
therefore H.B. 2023 did not violate § 2 of the VRA.
C
Finally, we consider DNC’s claim that H.B. 2023 violated
the Fifteenth Amendment.
22
While DNC cites extensively to the dissent in Chisom in arguing
that they need not prove members of a protected class have less
opportunity to elect representatives of their choice, we are bound by the
majority, which rejected this argument. 501 U.S. at 397 & n.24.
48 DNC V. REAGAN
1
Plaintiffs can challenge a state’s election practice as
violating their Fifteenth Amendment rights by showing that
“a state law was enacted with discriminatory intent.” Abbott
v. Perez, 138 S. Ct. 2305, 2324 (2018). Discriminatory intent
“implies more than intent as volition or intent as awareness of
consequences.” Pers. Adm’r of Mass. v. Feeney, 442 U.S.
256, 279 (1979). Rather, plaintiffs must show that a state
legislature “selected or reaffirmed a particular course of
action at least in part ‘because of,’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.” Id. Thus,
although racial discrimination need not be the “dominant” or
“primary” factor underlying a legislative enactment, it must
be a “motivating factor.” Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977).
A law is not infected by discriminatory intent merely
“because it may affect a greater proportion of one race than
of another.” Washington v. Davis, 426 U.S. 229, 242 (1976).
Rather, “[d]etermining whether invidious discriminatory
purpose was a motivating factor demands a sensitive inquiry
into such circumstantial and direct evidence of intent as may
be available.” Arlington Heights, 429 U.S. at 266. This
inquiry is guided by factors set forth in Arlington Heights. Id.at 266–68; see Bolden, 446 U.S. at 62, 72–74 (holding that a
facially neutral law “violates the Fifteenth Amendment only
if motivated by a discriminatory purpose” and applying
Arlington Heights in an analysis of discriminatory intent).
Under the Arlington Heights framework, “the following,
non-exhaustive factors” are relevant “in assessing whether a
defendant acted with discriminatory purpose: (1) the impact
of the official action and whether it bears more heavily on
DNC V. REAGAN 49
one race than another; (2) the historical background of the
decision; (3) the specific sequence of events leading to the
challenged action; (4) the defendant’s departures from normal
procedures or substantive conclusions; and (5) the relevant
legislative or administrative history.” Arce v. Douglas,
793 F.3d 968, 977 (9th Cir. 2015). Because of “the
presumption of good faith that must be accorded legislative
enactments” and the “evidentiary difficulty” in determining
whether race was a motivating factor, courts must “exercise
extraordinary caution” when engaging in this inquiry. Miller
v. Johnson, 515 U.S. 900, 916 (1995).
Discriminatory intent “is a pure question of fact” subject
to review for clear error. Pullman-Standard, 456 U.S. at287–88; Abbott, 138 S. Ct. at 2326. “It is not a question of
law and not a mixed question of law and fact.” Pullman-
Standard, 456 U.S. at 288.
Given this standard, we must determine whether the
district court’s finding that the Arizona legislature did not
have discriminatory intent is clearly erroneous. We consider
the district court’s findings on each Arlington Heights factor.
2
We start with two of the Arlington Heights factors, the
historical background and legislative history of the
enactment. Arce, 793 F.3d at 977. According to the district
court, Arizona’s history was “a mixed bag of advancements
and discriminatory actions.” Reagan, 2018 WL 2191664, at
*38. Although there was evidence of discrimination and
racially polarized voting, there was also evidence of
improvement. While Arizona was subject to § 5
preclearance, “the DOJ did not issue any objections to any of
50 DNC V. REAGAN
[Arizona’s] statewide procedures for registration or voting.”
Id. at *37. Moreover, Arizona enacted an Independent
Redistricting Commission to combat problems with
discrimination in drawing statewide redistricting plans. Id. at
*38.
The district court also noted the relevant legislative
history of H.B. 2023, including “farfetched allegations of
ballot collection fraud” made by one legislator, Arizona State
Senator Don Shooter, id. at *41, and a video (referred to as
the “LaFaro Video”) which “showed surveillance footage of
a man of apparent Hispanic heritage appearing to deliver
early ballots,” id. at *38.23 However, the court concluded that
the legislature was not motivated by discriminatory intent.
Rather, the court found that “Shooter’s allegations and the
LaFaro Video were successful in convincing H.B. 2023’s
proponents that ballot collection presented opportunities for
fraud that did not exist for in-person voting, and these
proponents appear to have been sincere in their beliefs that
this was a potential problem that needed to be addressed.” Id.
at *41.
The district court’s conclusion is well supported by the
legislative record, which shows that legislative discussion
focused on the danger of fraud. For example, the bill’s
sponsor, Senator Michelle Ugenti-Rita, stated that H.B. 2023
was designed to “limit fraud” in ballot collection, which “is
23
The district court found that the narration by Maricopa County
Republican Chair A.J. LaFaro “contained a narration of ‘Innuendos of
illegality . . . [and] racially tinged and inaccurate commentary by . . .
LaFaro.’” Reagan, 2018 WL 2191664, at *38. The video was first
introduced in 2014, but became “prominent in the debates over H.B.
2023.” Id. at *39.
DNC V. REAGAN 51
important to maintaining integrity in our electoral process”
because the ballot collection practice “is ripe to be taken
advantage of.” Senator Steve Smith testified that ballot fraud
is “certainly happening,” and Michael Johnson, an African
American who had served on the Phoenix City Council,
testified that he had constituents call to complain about ballot
collectors in minority communities. Senator Smith cited this
testimony in a speech supporting the law. Senator Sylvia
Allen expressed concern that “we do not know what happens
between the time the ballots are collected and when they’re
finally delivered.” This concern was confirmed by State
Election Director Eric Spencer, who testified that “there is a
huge imbalance in the amount of security measures that are
in place for polling place voting compared to early voting.”
Even though “77 percent of all the votes cast in Arizona” are
early votes, there are “almost no prophylactic security
procedures in place to govern that practice, whereas, at the
polling place, where only 23 percent of the votes are taking
place, we have every security measure in the world.”
The legislature also heard testimony that other states had
implemented similar security measures related to ballot
collection. According to the legislative record, at the time
H.B. 2023 was considered by the Arizona legislature,
“California, New Mexico, Colorado, [and] Nevada all ha[d]
laws that restrict or prohibit ballot collection,” and therefore
Arizona was “a little bit out of the norm especially among our
neighbors.” The legislature also heard that the California law
was more draconian than H.B. 2023: it prohibited all ballot
collection except by members of the household, family
members, and spouses, and did not count votes in ballots that
had been improperly collected.
52 DNC V. REAGAN
DNC and the dissent claim that the district court erred in
giving weight to this evidence because there was no evidence
of actual fraud. According to DNC, this evidentiary gap
established that the legislators’ expressed concerns regarding
fraud in ballot collection were merely a facade for racial
discrimination. This argument fails. The Arizona legislature
was free to enact prophylactic measures even when the
legislative record “contains no evidence of any such fraud
actually occurring.” Crawford, 553 U.S. at 194. Moreover,
as the district court noted, “H.B. 2023 found support among
some minority officials and organizations,” including
Michael Johnson, the African American councilman, and the
Arizona Latino Republican Association for the Tucson
Chapter, which undermines DNC’s claim that concerns about
fraud were a mere front for discriminatory motives. Reagan,
2018 WL 2191664, at *41.
DNC argues that the district court erred in not giving
sufficient weight to the evidence that the LaFaro video had
racial overtones. The district court’s decision to give this
evidence less weight was not a legal error, however, because
the district court was not obliged to impute the motives of a
few legislators to the entire Arizona legislature that passed
H.B. 2023. See Arlington Heights, 429 U.S. at 265–66.
“What motivates one legislator 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).24 The Sixth Circuit recently recognized this point,
24
DNC relies on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission, 138 S. Ct. 1719 (2018), for the principle that courts should
put more weight on discriminatory statements of individual
decisionmakers, but that case is not on point. In holding that statements
of individual commissioners were relevant to determine whether a law
DNC V. REAGAN 53
holding that the clearly discriminatory statements and motive
of one legislator did not show that the enacting legislature
“acted with racial animus.” Ne. Ohio Coal., 837 F.3d at 637.
The district court also did not err in giving little weight to
evidence that “some individual legislators and proponents
were motivated in part by partisan interests.” Reagan,
2018 WL 2191664, at *43. The record shows that State
Senator Shooter’s concerns about ballot collection arose after
he won a close election, that Michael Johnson complained
that ballot collection put candidates without an effective get-
out-the-vote effort at a disadvantage, and a 2014 Republican
candidate for the Arizona House of Representatives claimed
that he lost his election because of ballot collection activities.
Id. Although DNC and the dissent seem to argue that, as a
matter of law, legislators should be deemed to have a
discriminatory intent for Fifteenth Amendment purposes
when they are motivated by partisan interests to enact laws
that disproportionately burden minorities, this is incorrect.
Fifteenth Amendment plaintiffs must show that the legislature
acted with racial motives, not merely partisan motives. See,
e.g., Cooper v. Harris, 137 S. Ct. 1455, 1473 (2017) (“[A]
trial court has a formidable task: It must . . . assess whether
the plaintiffs have managed to disentangle race from politics
intentionally discriminated on the basis of religion, the Court distinguished
the adjudicatory context from the legislative context. See id. at 1730.
Masterpiece Cakeshop explained that while “[m]embers of the Court have
disagreed on the question whether statements made by lawmakers may
properly be taken into account in determining whether a law intentionally
discriminates on the basis of religion,” the remarks in this case were made
“in a very different context—by an adjudicatory body deciding a particular
case.” Id. Because our case involves a legislature enacting a general
statute, rather than adjudicating a specific case, Masterpiece Cakeshop is
not applicable.
54 DNC V. REAGAN
and prove that the former drove a district’s lines.”); Easley v.
Cromartie, 532 U.S. 234, 243 (2001) (evaluating the district
court’s critical finding “that race rather than politics”
motivated the districting map). The “intent to preserve
incumbencies” is not equivalent to racially-discriminatory
intent, and only the latter supports a finding of intentional
discrimination. Garza v. County of Los Angeles, 918 F.2d
763, 771 & n.1 (9th Cir. 1990). Even when “racial
identification is highly correlated with political affiliation,”
Cooper, 137 S. Ct. at 1473 (quoting Easley, 532 U.S. at 243),
plaintiffs must still carry their burden of showing that the
former was a motivating factor. Id. Accordingly, the
determination whether racial or political interests motivated
a legislature is one of fact subject to review for clear error.
See Cooper, 137 S. Ct. at 1473–74. Here the district court
disentangled racial motives from partisan motives, and its
factual finding that even those few legislators harboring
partisan interests did not act with a discriminatory purpose is
not clearly erroneous.25 Therefore, the historical and
legislative history factors support the district court’s
conclusion.
3
We next turn to the Arlington Heights factors of the
“sequence of events” leading to the challenged action and
“departures from normal procedures.” Arce, 793 F.3d at 977.
25
Contrary to the dissent, the district court did not find that “partisan
self-interest [] absolve[d] discriminatory intent.” Dissent at 110. Rather,
the district court determined that the Arizona legislature did not act with
discriminatory intent, and passed H.B. 2023 in spite of any potential
disparate-impact on minority voters, not because of it. Reagan, 2018 WL
2191664, at *41.
DNC V. REAGAN 55
First, the district court found that the Arizona legislature
followed its normal course in enacting H.B. 2023, and
therefore the legislative process itself did not raise an
inference of discriminatory intent. Reagan, 2018 WL
2191664, at *42–43. This conclusion is supported by the
record; there is no evidence that the legislature used unusual
procedures or unprecedented speed to pass a law, N.C. State
Conference of NAACP v. McCrory, 831 F.3d 204, 214, 228
(4th Cir. 2016), which other courts have deemed raise such an
inference, see, e.g., Veasey I, 830 F.3d at 238 (holding that
the Texas legislature’s unwonted procedure of designating the
bill “as emergency legislation,” cutting debates short, passing
it without the ordinary committee process, and suspending a
two-thirds voting rule to get the bill passed, weighed in favor
of a finding of discriminatory intent).
Second, in considering the historical sequence of events,
the district court held that neither of the two prior efforts to
limit ballot collection, S.B. 1412 (enacted in 2011) and H.B.
2305 (enacted in 2013), weighed in favor of finding that the
legislature had a discriminatory intent in enacting H.B. 2023.
Reagan, 2018 WL 2191664, at *42–43. The record showed
that S.B. 1412 was subject to § 5 preclearance, and that after
the DOJ requested additional information regarding the ballot
collection provision, the Arizona Attorney General
voluntarily withdrew the provision. Id. at *42. Two years
later, the legislature enacted H.B. 2305, which also regulated
ballot collection. Id. After citizen groups organized
referendum efforts against the law, the legislature repealed it.
Id. The court held that while these circumstances were
somewhat suspicious, they “have less probative value because
they involve different bills passed during different legislative
sessions by a substantially different composition of
legislators.” Id.
56 DNC V. REAGAN
The district court did not clearly err in giving little weight
to these prior enactments. Even if the bills had been informed
by a discriminatory intent, the Supreme Court has made clear
that “[p]ast discrimination cannot, in the manner of original
sin, condemn governmental action that is not itself unlawful.”
Abbott, 138 S. Ct. at 2324 (quoting Bolden, 446 U.S. at 74).
The intent of a prior legislature cannot be imputed to a new
legislature enacting a different bill “notwithstanding the
previous drafter’s intent.” Veasey v. Abbott (Veasey II), 888
F.3d 792, 802 (5th Cir. 2016). Indeed, it is a clear error to
presume that any invidious intent behind a prior bill
“necessarily carried over to and fatally infected” the law at
issue. Id. Further, “meaningful alterations” in an amended
statute may render even a previously discriminatory statute
valid. Id. (citation omitted). Because Arizona’s previous
laws on ballot collection were different rules, passed by
different legislatures, and H.B. 2023 is “more lenient than its
predecessors given its broad exceptions for family members,
household members, and caregivers,” these prior enactments
do not materially bear on the legislature’s intent in enacting
H.B. 2023. Reagan, 2018 WL 2191664, at *43.
Moreover, the district court did not err in finding that
neither S.B. 1412 or H.B. 2305 was enacted with racially
discriminatory intent. Regarding S.B. 1412, the record shows
only that the DOJ requested more information, but its primary
concern was the law’s “impact on minority voters,” Feldman
III, 843 F.3d at 369 (emphasis added), not the intent of the
legislature in enacting it.26 And as to H.B. 2305, the record
26
To support its claim, DNC points to Representative Ruben
Gallego’s statements to the DOJ that S.B. 1412 was motivated by
discriminatory intent. But Gallego opposed S.B. 1412, and “[t]he
Supreme Court has . . . repeatedly cautioned—in the analogous context of
DNC V. REAGAN 57
does not disclose why citizens opposed the law or whether the
referendum sought to combat a discriminatory purpose. The
lack of evidence of past discrimination further undermines
DNC’s argument that the legislature had discriminatory intent
in passing H.B. 2023.
4
In reviewing the final Arlington Heights factor (whether
the law would have a disparate impact on a particular racial
group), Arce, 793 F.3d at 977, the district court found that
“the legislature enacted H.B. 2023 in spite of its impact on
minority [get out the vote] efforts, not because of that
impact,” and concluded that “proponents of the bill seemed
to view these concerns as less significant because of the
minimal burdens associated with returning a mail ballot,”
Reagan, 2018 WL 2191664, at *43.
The district court did not clearly err in reaching this
conclusion. Multiple senators expressed their view that H.B.
2023 imposes only a slight burden on voters. For instance,
Senator Michelle Ugenti-Rita stated that voters have “[l]ots
of opportunities” to vote in the 27 day early-voting window,
and expressed her view that there is no reason to presume a
voter who previously used ballot collection would have
statutory construction—against placing too much emphasis on the
contemporaneous views of a bill’s opponents” in determining a
legislature’s intent. Veasey I, 830 F.3d at 234 (quoting Butts v. City of
New York, 779 F.2d 141, 147 (2d Cir. 1985)). DNC also points to
statements by Amy Chan (formerly Amy Bjelland) to the DOJ, but the
district court reasonably interpreted her statements as merely explaining
that the impetus for S.B. 1412 was an accusation of voter fraud in San
Luis, a predominately Hispanic area in the southern portion of Arizona.
Feldman III, 843 F.3d at 384.
58 DNC V. REAGAN
trouble voting. Given that these voters have already asked
“that their ballot be mailed to them,” Senator Ugenti-Rita
stated “logic would tell you they are perfectly capable and
understand that, in order to then get their ballot in, they need
to put it back in to the mailbox or drop it off.” Another
proponent of the bill, John Kavanaugh, expressed a similar
view: “The only way you get an early ballot is to have it
delivered to you by mail, and the way you’re supposed to
return an early ballot is to reverse that process. And it’s hard
to imagine how, when you have an early ballot, somewhere
in the area of 30 days, you somehow can’t do that.” Again,
the record does not contain the sort of evidence that has led
other courts to infer the legislature was acting with
discriminatory intent, such as evidence that the legislators
studied minority data and targeted the voting methods most
used by minority voters. Cf. McCrory, 831 F.3d at 220. In
fact, no voters, minority or non-minority, testified that they
faced a substantial obstacle to voting because of H.B. 2023.
Accordingly, we find no clear error in the court’s holding that
“[b]ased on the totality of the circumstances,” DNC had “not
shown that the legislature enacted H.B. 2023 with the intent
to suppress minority votes.” Reagan, 2018 WL 2191664, at
*43.
In sum, the district court carefully weighed the evidence
of discriminatory purpose and found the Arizona legislature
was not motivated by an intent to discriminate. The findings
supporting this conclusion are not clearly erroneous, and
neither was the ultimate balancing of the Arlington Heights
factors.
DNC V. REAGAN 59
5
Because discriminatory intent is a “pure question of fact,”
a court must defer to the district court’s fact-finding unless it
is clearly erroneous. Pullman-Standard, 456 U.S. at 288.
But the dissent once again reviews the record de novo,
reweighs the evidence, and reaches its own conclusion. For
instance, the district court referenced Senator Shooter’s
allegations and the LaFaro video, but concluded, based on its
review of the record, that the legislature was not motivated by
discriminatory intent. Reagan, 2018 WL 2191664, at *41.
The dissent simply reaches the opposite conclusion, based on
the same evidence. Dissent at 111–13. Similarly, the dissent
claims “the district court was wrong to determine that a law
is not racially motivated if any people of color support it.”
Dissent at 113. But that mischaracterizes the district court’s
holding. Rather, after reviewing the evidence in the record,
the district court found that H.B. 2023 was supported by
minority officials and organizations. Reagan, 2018 WL
2191664, at *41. The district court did not err in considering
that fact, among others, in determining whether the supporters
of H.B. 2023 were motivated by racial discrimination, and the
district court need not have concluded, as does the dissent,
that such evidence “simply demonstrates that people of color
have diverse interests.” Dissent at 113. The Supreme Court
has long held that an appellate court may not reject a district
court’s findings as clear error even when the court is
“convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.” Bessemer City,
470 U.S. at 574. The dissent’s approach contradicts this rule.
Further, the dissent supports its conclusion that “H.B.
2023 was enacted for the purpose of suppressing minority
votes” by creating its own per se rules that a legislature’s
60 DNC V. REAGAN
anti-fraud motive is pretextual when there is no direct
evidence of voter fraud, and that a legislature’s partisan
motives are evidence of racial discrimination. Dissent at 107,
110–12. The dissent cites no support for these new rules,
likely because Supreme Court precedents contradict them:
Crawford rejected the idea that actual evidence of voter fraud
was needed to justify restrictions preventing voter fraud,
553 U.S. at 195–96 & nn.11–13; and Cooper made clear
plaintiffs must “disentangle race from politics and prove that
the former drove” the legislature, 137 S. Ct. at 1473. The
dissent’s attempt to reframe the evidence does not make the
district court’s resolution of this purely factual question
clearly erroneous. Pullman-Standard, 456 U.S. at 287–88.
IV
We now turn to DNC’s challenges to the OOP policy.
DNC argues that (1) the OOP policy violates the First and
Fourteenth Amendment; and (2) the OOP policy violates § 2
of the VRA.
A
We begin with DNC’s claims that the OOP policy
violates the First and Fourteenth Amendment by imposing an
unconstitutional burden under the Anderson/Burdick test.
1
As an initial matter, we agree with the district court’s
characterization of these claims as constituting a challenge to
the precinct voter system. As discussed, most Arizona
counties use a precinct-based system for the 20 percent of
voters who vote in person on Election Day. In-person voters
DNC V. REAGAN 61
must cast their ballots in their assigned precinct, or their votes
will not be counted. See Ariz. Rev. Stat. §§ 16-122, 16-135,
16-584 (codified in 1979); 1970 Ariz. Sess. Laws, ch. 151,
§ 64 (amending Ariz. Rev. Stat. § 16-895); Ariz. Rev. Stat.
§ 16-102 (1974). This rule does not apply to voters who cast
their ballots in a county that use a vote center system, or who
use other methods to vote.
On appeal, DNC argues that it is not challenging the rule
requiring voting within a precinct, but rather Arizona’s
enforcement of the rule by not counting ballots cast in the
wrong precinct (which it calls disenfranchisement).27 This
argument is sophistical; it conflates the burden of complying
with an election rule with the consequence of non-
compliance. As the Supreme Court has recognized, a state
has an obligation to structure and organize the voting process
within the state through a system of election rules. Storer,
415 U.S. at 730. For instance, states typically have election
rules that require voters to register to vote and to cast their
votes in person during the hours when polls are open. These
rules impose certain minimal burdens on voters—the ordinary
burdens of registering to vote and showing up on time. If
voters fail to comply, they may be unable to vote or their
ballots may not be counted. But it is the election rules that
impose a burden on the voter—not the enforcement of those
rules. Under DNC’s theory, a state could not enforce even a
27
This is a misnomer. A state disenfranchises voters (for example,
pursuant to a felon disenfranchisement law) by depriving certain
individuals of their right to vote, not by requiring voters to comply with
an election rule in order to have their votes counted. As the Supreme
Court has explained, an election rule, such as the requirement to have a
valid photo ID in order to vote, may be valid, even if a voter’s
noncompliance with such a rule means that the voter’s ballot will not be
counted. Crawford, 553 U.S. at 187, 189.
62 DNC V. REAGAN
rule requiring registration, because the state’s failure to count
the vote of a non-registered voter would “disenfranchise” the
noncompliant voter.
Rather than adopt DNC’s fallacious approach, we are
guided by the Supreme Court’s approach in Crawford.
Crawford considered a state’s election rule which provided
that in-person voters who did not have valid photo ID, and
did not thereafter verify their identities, were unable to have
their votes counted. 553 U.S. at 186. In conducting its
Anderson/Burdick analysis, Crawford held that this photo ID
rule imposed the burden of obtaining the requisite
identification by “making a trip to the [issuing agency],
gathering the required documents, and posing for a
photograph,” id. at 198, and potentially could impose a
heavier burden on subgroups, such as the homeless or those
lacking birth certificates, id. at 199. The Court’s analysis
would make little sense if the relevant burden were the state’s
enforcement of the photo ID rule; under that view, all voters
would be subject to the same burden—that of having their
non-compliant votes discounted. Accordingly, like the
district court, we conclude that the appropriate analysis is
whether compliance with the voter requirement in
question—here, the requirement to vote in an assigned
precinct—imposes an undue burden. See also Serv. Emps.
Int’l Union Local 1 v. Husted, 698 F.3d 341, 344 (6th Cir.
2012) (explaining that courts cannot “absolve[] voters of all
responsibility for voting in the correct precinct or correct
polling place by assessing voter burden solely on the basis of
the outcome—i.e. the state’s ballot validity determination”).
DNC V. REAGAN 63
2
Applying the Anderson/Burdick framework to the proper
characterization of DNC’s challenge, the district court found
that the precinct voting rule did not unconstitutionally burden
the right to vote. As with H.B. 2023, the district court first
observed that Arizona’s OOP policy has no impact on the
vast majority of Arizona voters because 80 percent of them
cast their ballots through early mail voting. Reagan,
2018 WL 2191664, at *21. The court also noted that the
policy has no impact on voters in Graham, Greenlee, Cochise,
Navajo, Yavapai, and Yuma counties, rural counties that
adopted the vote center model. Id.As to those few Arizonans who vote in person outside of
the vote center counties, the district court found that the
burden of voting in the correct precinct was minimal. The
district court acknowledged that people who move frequently
may fail to update their voter registration in a timely manner
and, as a result, may not have their early ballot forwarded to
their new address, and that “changes in polling locations from
election to election, inconsistent election regimes used by and
within counties, and placement of polling locations all tend to
increase OOP voting rates,” as well as incorrect information
provided by poll workers. Id. at *22. The district court
nevertheless concluded that “the burdens imposed on voters
to find and travel to their assigned precincts are minimal and
do not represent significant increases in the ordinary burdens
traditionally associated with voting.” Id. at *24. Moreover,
the district court found, “Arizona does not make it needlessly
difficult for voters to find their assigned precincts,” citing the
myriad ways Arizona provides that information to voters:
direct mailings, multiple state and county websites, town
halls, live events, and social media and other advertising. Id.64 DNC V. REAGAN
at *23–24 This information is generally provided in both
English and Spanish. Id. at *24. Further, the court found that
“for those who find it too difficult to locate their assigned
precinct, Arizona offers generous early mail voting
alternatives.” Id. In light of these measures, the district court
did not clearly err in finding that the burden of voting in the
correct precinct was minimal.
Considering the electorate as a whole, the court found that
the number of out-of-precinct votes was “small and ever-
dwindling.” Id. Only 14,885 of the 2,320,851 Arizonan
votes cast in the 2008 general election were cast outside of
the correct precinct—just 0.64 percent of total votes. Id. at
*21. That number dropped to 10,979 ballots in the 2012
general election—0.47 percent of total votes. Id. By the
2016 general election, only 3,970 votes were cast in the
wrong precinct in Arizona—just 0.15 percent of the
2,661,497 total votes. Id. The small and decreasing number
of out-of-precinct votes confirms the district court’s
conclusion that the burden of identifying the correct precinct
is minimal.
We conclude that the district court’s finding that the
requirement to vote in the correct precinct is a minimal
burden is not clearly erroneous. As the district court noted,
precinct-based voting is an established method of conducting
elections and is used in a majority of states. Id. at *8; see
also Serv. Emps., 698 F.3d at 344 (precinct-voting system);
Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565,
568 (6th Cir. 2004) (per curiam) (“One aspect common to
elections in almost every state is that voters are required to
vote in a particular precinct. Indeed, in at least 27 of the
states using a precinct voting system, including Ohio, a
voter’s ballot will only be counted as a valid ballot if it is cast
DNC V. REAGAN 65
in the correct precinct.”). And a majority of the states that
use precinct voting do not count out-of-precinct ballots.
Reagan, 2018 WL 2191664, at *8. The requirement to use
mail voting or locate the correct precinct and then travel to
the correct precinct to vote does not “represent a significant
increase over the usual burdens of voting.” Crawford,
553 U.S. at 198.
DNC’s arguments to the contrary are meritless. First,
DNC argues that the burden imposed by Arizona’s policy of
not counting ballots cast outside of the proper precinct is not
minimal because the ratio of Arizona voters who cast ballots
outside of the correct precinct compared to total votes cast in-
person on Election Day is higher than in any other state. This
statistic is misleading, because the vast majority of Arizonans
vote early by mail—not in-person on Election Day. Reagan,
2018 WL 2191664, at *21. More important, the relative
difference between Arizona and other states does not shed
any light on the only relevant issue: the size of the burden
imposed by Arizona’s precinct voter system.28
28
The dissent offers similarly misleading statistics to support its
assertion that “Arizona voters are far likelier to vote [out of precinct] than
voters of other states.” Dissent at 77. The dissent’s graph, Dissent at 78,
shows only that the small subset of Arizona voters who cast their ballots
in-person on Election Day are more likely to vote outside their precinct
than voters in other states. Dissent at 78. The vast majority of Arizona
voters, however, vote early by mail. Reagan, 2018 WL 2191664, at *21.
Further, the dissent mentions the total number of votes cast out of precinct
in the 2012 election, but not the more recent data from the 2016 election,
which supports the district court’s conclusion that the number of votes cast
out of precinct is an “ever-decreasing fraction of the overall votes cast in
any given election.” Reagan, 2018 WL 2191664, at *35.
66 DNC V. REAGAN
Second, DNC points to the evidence in the record
regarding the external factors that contribute to out-of-
precinct voting in Arizona, such as residential mobility,
polling place locations, and pollworker training, and argues
that such external factors impose a heavier burden on
minorities.29 But even if DNC presented evidence showing
that the burden of finding the correct precinct fell more
heavily on minorities than nonminorities, such evidence
would not establish that the burden is any more than de
minimis. DNC does not cite evidence that would allow a
court “to quantify either the magnitude of the burden on [any
such] class of voters or the portion of the burden imposed on
them that is fully justified,” id. at 200; nor does DNC directly
contest the evidence on which the district court relied in
determining the burden was minimal. For instance, the
district court cited substantial evidence in the record showing
that in “Arizona counties with precinct-based systems, voters
generally are assigned to precincts near where they live, and
county officials consider access to public transportation when
assigning polling places,” and that “Arizona voters also can
learn of their assigned precincts in a variety of ways,” by
accessing multiple websites operated by Arizona or various
counties, by being mailed notice of any changes in polling
places, or by calling the county recorder, among numerous
other methods. Reagan, 2018 WL 2191664, at *23. Further,
the district court relied on a 2016 Survey of Performance of
American Elections in which no Arizona respondents stated
that it was “very difficult” to find their polling place, and
29
As the district court noted, DNC did not challenge the manner in
which individual counties locate polling places, or the manner in which
Arizona trains its poll workers or informs voters of their assigned
precincts, thus undercutting any argument that such practices violated § 2.
Reagan, 2018 WL 2191664, at *23.
DNC V. REAGAN 67
94 percent of Arizona respondents reported that it was “very
easy” or “somewhat easy” to find their polling place. Id.Accordingly, we decline the invitation by DNC and the
dissent to reweigh the same evidence considered by the
district court and reach the opposite conclusion. See
Bessemer City, 470 U.S. at 573. Instead, we affirm the
district court’s determination that the Arizona precinct voter
rule imposed only minimal burdens.
3
We next consider the district court’s conclusion that
Arizona had important regulatory interests for requiring
precinct-based voting. The court found that this precinct
system serves an important planning function by allowing
counties to estimate the number of voters who may be
expected at any particular precinct, allowing for better
allocation of resources and personnel. Reagan, 2018 WL
2191664, at *24. A well-run election increases voter
confidence and reduces wait times. Id. Second, the precinct
voting system ensures that each voter receives a ballot
reflecting only the races for which that person is entitled to
vote, which “promotes voting for local candidates and issues
and helps make ballots less confusing by not providing voters
with ballots that include races for which they are not eligible
to vote.” Id.The court concluded that the OOP policy was sufficiently
justified by Arizona’s important interests in light of the
minimal burdens it imposes, and held that Arizona’s practice
did not need to be the narrowest means of enforcement. Id.at *24–26. The court therefore rejected DNC’s arguments
that Arizona should be required to adopt a more narrowly
tailored rule and partially count ballots that were cast out-of-
68 DNC V. REAGAN
precinct, i.e., “counting only the offices for which the OOP
voter is eligible to vote.” Id. at *25. Moreover, the court
concluded that such a requirement would have significant
impacts. If Arizona no longer enforced in-precinct voting,
the court reasoned, people would “have far less incentive to
vote in their assigned precincts and might decide to vote
elsewhere.” Id. at *25. Voters could also “be nefariously
directed to vote elsewhere,” id., as detailed in N.C. State
Conference of NAACP v. McCrory, 182 F. Supp. 3d 320, 461
(M.D.N.C. 2016), rev’d on other grounds, 831 F.3d 204 (4th
Cir. 2016). Further, partially counting ballots would burden
candidates for local office, who would have to persuade
voters to vote in-precinct. Reagan, 2018 WL 2191664, at
*25. Finally, it would “impose a significant financial and
administrative burden on Maricopa and Pima Counties
because of their high populations.” Id. Accordingly, the
court concluded that Arizona’s rejection of ballots cast out-
of-precinct does not violate the First and Fourteenth
Amendments.
We agree with the district court’s analysis. The interests
served by precinct-based voting are well recognized. As the
Sixth Circuit has explained:
The advantages of the precinct system are
significant and numerous: it caps the number
of voters attempting to vote in the same place
on election day; it allows each precinct ballot
to list all of the votes a citizen may cast for all
pertinent federal, state, and local elections,
referenda, initiatives, and levies; it allows
each precinct ballot to list only those votes a
citizen may cast, making ballots less
confusing; it makes it easier for election
DNC V. REAGAN 69
officials to monitor votes and prevent election
fraud; and it generally puts polling places in
closer proximity to voter residences.
Sandusky Cty. Democratic Party, 387 F.3d at 569.
DNC does not dispute these legitimate interests, but
argues that the OOP policy is not justified because it is
administratively feasible to count ballots cast out-of-precinct,
pointing to 20 other states which partially count out-of-
precinct ballots. But restrictions such as the OOP policy that
impose minimal burdens on voters’ rights need not be
narrowly tailored, see Burdick, 504 U.S. at 433, and thus
Arizona is not required to show that its electoral system “is
the one best tailored to achieve its purposes.” Dudum,
640 F.3d at 1114. Moreover, as the district court pointed out,
DNC’s “requested relief essentially would transform
Arizona’s precinct-based counties, including its two most
populous, into quasi-vote-center counties.” Reagan,
2018 WL 2191664, at *26. The mere fact that a minority of
jurisdictions adopt a different system does not mean that
Arizona’s choice is unjustified. Where, as here, the plaintiff
“effectively ask[s] the court to choose between electoral
systems,” we ordinarily reject such challenges. See Dudum,
640 F.3d at 1115. “[A]bsent a truly serious burden on voting
rights,” we have held that we must have “respect for
governmental choices in running elections,” particularly
where “the challenge is to an electoral system, as opposed to
a discrete election rule (e.g., voter ID laws, candidacy filing
deadlines, or restrictions on what information can be included
on ballots).” Id. at 1114–15 (emphasis omitted). As we have
recognized, such variations are “the product of our
democratic federalism, a system that permits states to serve
‘as laboratories for experimentation to devise various
70 DNC V. REAGAN
solutions where the best solution is far from clear.’” Pub.
Integrity All., 836 F.3d at 1028 (quoting Ariz. State
Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct.
2652, 2673 (2015)).
DNC also contends that there is insufficient evidence that
more voters will vote out-of-precinct if Arizona began
partially counting out-of-precinct ballots. But just as with
fraud prevention, Arizona does not need to produce
“elaborate, empirical verification of the weightiness of [its]
asserted justifications.” Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 364 (1997); see also Munro, 479 U.S. at
195 (“To require States to prove actual voter confusion, ballot
overcrowding, or the presence of frivolous candidacies as a
predicate to the imposition of reasonable ballot access
restrictions would invariably lead to endless court battles over
the sufficiency of the ‘evidence’ marshaled by a State to
prove the predicate.”). Courts wisely do not require “that a
State’s political system sustain some level of damage” before
it can impose “reasonable restrictions” on the electoral
process.30 Munro, 479 U.S. at 195. Therefore, we affirm the
district court’s holding that the OOP policy is valid under the
Anderson/Burdick framework.
30
The dissent also challenges the wisdom of Arizona’s OOP policy,
labeling as “illogical” Arizona’s concern that without the policy voters
may not have an incentive to identify and vote in their correct precinct.
Dissent at 104. In reaching this conclusion, the dissent relies only on its
own view of proper policy, a view that contradicts a majority of states,
which each adopt the same approach as Arizona. Reagan, 2018 WL
2191664, at *8. We therefore reject this argument.
DNC V. REAGAN 71
B
Finally, we address DNC’s claim that the OOP policy
violates § 2 of the VRA.
As noted above, at the first step, DNC must carry its
burden of showing that the challenged practice (here
Arizona’s requirement that in-person voters vote in the
correct precinct) gives members of a protected class less
opportunity than other members of the electorate both “to
participate in the political process and to elect representatives
of their choice.” Chisom, 501 U.S. at 397 (quoting 52 U.S.C.
§ 10301(b)).
The district court held that DNC did not carry its burden
at the first step of its § 2 claim. Although finding that
“minorities are over-represented among the small number of
voters casting OOP ballots,”31 the court also found that out-
of-precinct “ballots represent . . . a small and ever-decreasing
fraction of the overall votes cast in any given election.”
Reagan, 2018 WL 2191664, at *34–35. As noted above, only
3,970 out of 2,661,497 total votes, or 0.15 percent, were cast
in the wrong precinct during the 2016 general election. Id. at
31
For example, among all counties that reported out-of-precinct
ballots in the 2016 general election, roughly 99 percent of Hispanic,
African American, and Native American voters cast ballots in the correct
precinct, while the other 1 percent voted in the wrong precinct. Reagan,
2018 WL 2191664, at *34. By comparison, 99.5 percent of non-minority
voters voted in the correct precinct, with 0.5 percent casting out-of-
precinct ballots. Id. While this data shows, as Arizona notes, that
minority voters were “twice as likely” to cast OOP ballots as non-minority
voters, the relative percentages of voters in each group who vote in the
correct and incorrect precincts are far more meaningful. See Frank,
768 F.3d at 752 n.3.
72 DNC V. REAGAN
*35. Further, as in its Anderson/Burdick analysis, the court
found that the burden of identifying the correct precinct was
minimal. The court noted that DNC had not challenged “the
manner in which Arizona counties allocate and assign polling
places or Arizona’s requirement that voters re-register to vote
when they move.” Id. Nor had DNC claimed that there was
“evidence of a systemic or pervasive history” of
disproportionately giving minority voters misinformation as
to precinct locations, or evidence “that precincts tended to be
located in areas where it would be more difficult for minority
voters to find them, as compared to non-minority voters.” Id.
Because the number of votes cast out of precinct by any
voters was small and decreasing, and because the burden of
finding the correct precinct was minimal (and the state had
not made the burden more difficult for minorities), the district
court concluded that the OOP policy did not give minority
voters less opportunity than the rest of the electorate to
participate in the political process and elect their preferred
representatives. Id. at *36. Therefore, the court concluded
that DNC had failed to carry its burden at the first step of
§ 2.32
32
Having reached this conclusion, the district court did not need to
reach step two, but nonetheless analyzed both challenged election
practices together and found that, although some of the Senate Factors
were present, DNC’s causation theory was too tenuous to meet its burden.
Reagan, 2018 WL 2191664, at *36–40. These findings are not clearly
erroneous. In arguing to the contrary, the dissent again engages in
appellate fact-finding, emphasizing some parts of the extensive record and
ignoring others. For example, the district court found that DNC did not
carry its burden of proving that “there is a significant lack of
responsiveness on the part of elected officials to the particularized needs
of the members of the minority groups.” Id. at *27. This conclusion is
supported by substantial evidence in the record, including evidence of
outreach efforts by the Arizona Citizens Clean Elections Commission to
increase minority voter education and participation, and evidence that
DNC V. REAGAN 73
The district court did not clearly err in reaching this
conclusion. Although DNC argues that minorities are more
likely to cast out-of-precinct ballots, and that there have been
close elections where out-of-precinct ballots could have made
a difference, the fact that a practice falls more heavily on
minorities is not sufficient to make out a § 2 violation. Salt
River, 109 F.3d at 595. Rather, there must be a showing that
the challenged practice causes a material impact on the
opportunity provided to minorities to participate in the
political process and to elect representatives of their choice.
“[U]nless minority group members experience substantial
difficulty electing representatives of their choice, they cannot
prove that a challenged electoral mechanism impairs their
ability ‘to elect.’” Gingles, at 48 n.15 (quoting 52 U.S.C.
§ 10301(b)). A precinct voting system, by itself, does not
have such a causal effect. Such a common electoral practice
is a minimum requirement, like the practice of registration,
that does not impose anything beyond “the usual burdens of
voting.” Crawford, 553 U.S. at 198. As with other laws that
impose such minimal burdens, a court can reasonably
conclude that this background requirement, on its own, does
not cause any particular group to have less opportunity to
“influence the outcome of an election.” Chisom, 501 U.S. at
Arizona had the sixteenth-highest minority representation ratio in the
country. Although the dissent points to other evidence in the record, e.g.,
evidence that Arizona has the fourth-poorest health insurance coverage for
children, and is ranked second-lowest overall per-pupil spending for Fiscal
Year 2014, Dissent at 94–95, our proper role is to determine whether “the
district court’s account of the evidence is plausible in light of the record
viewed in its entirety,” Bessemer City, 470 U.S. at 574, not to substitute
our own evaluation of the record. Here, the district court’s view of the
evidence was clearly permissible, and we therefore disregard the dissent’s
impermissible reweighing of the evidence.
74 DNC V. REAGAN
397. Indeed, DNC has not adduced any evidence to the
contrary.
In arguing that the district court erred, the dissent relies
primarily on its erroneous view that any disparate impact on
minorities constitutes a violation of step one of § 2. See
supra at 41 n.18. Based on this misunderstanding, the dissent
argues that “the district court legally erred in determining that
a critical mass of minority voters must be disenfranchised
before § 2 is triggered.”33 Dissent at 84. But it is the dissent
that errs in arguing that evidence that an election rule has any
disparate impact on minorities is sufficient to succeed on a
§ 2 claim. Dissent at 88. As the Supreme Court pointed out,
to meet the language of § 2, “all such claims must allege an
abridgement of the opportunity to participate in the political
process and to elect representatives of one’s choice,” Chisom,
501 U.S. at 398, and must prove more than “the mere loss of
an occasional election.” Gingles, 478 U.S. at 51. Here, the
district court was faithful to the language of § 2. 52 U.S.C.
§ 10301 (b).34
33
Of course, as explained above, supra at 61 n.27, an election rule
requiring voters to identify their correct precinct in order to have their
ballots counted does not constitute a “disenfranchisement” of voters.
34
In the alternative, the dissent argues that “in this instance, a critical
mass has been shown.” Dissent at 84 n.2. The record provides no support
for this statement. Rather, the evidence shows that approximately
99 percent of Hispanic, African American, and Native American voters
cast ballots in their correct precinct. Reagan, 2018 WL 2191664, at *34.
In 2016 only 3,970 votes were cast out of precinct—0.15 percent of the
total votes cast—and the record is silent on what number of those ballots
were cast by minority voters. Reagan, 2018 WL 2191664, at *34–35.
The dissent’s only support for its claim is its brief reference to the dissent
in Feldman II, 842 F.3d at 634, which in turn references two close primary
elections in Arizona (one Republican, one Democrat) in 2012 and 2014,
DNC V. REAGAN 75
This is not to say that plaintiffs could never carry their
burden of showing a precinct-based voting system gave
minority voters less opportunity. For instance, it is possible
that a state could implement such a system in a manner that
makes it more difficult for a significant number of members
of a protected group to discover the correct precinct in order
to cast a ballot. This could occur, for instance, if the state did
not provide necessary information in the language best
understood by a language minority. But here, the district
court found that DNC did not present any evidence of this
sort of practice. Reagan, 2018 WL 2191664, at *23–24.
DNC does not contest this finding on appeal, nor does it
challenge any other elements of Arizona’s precinct voting
system, such as individual counties’ location of polling
places, as unlawful.
Therefore, the district court correctly determined that the
precinct voter system did not lessen the opportunities of
minorities to participate in the political process and to elect
representatives of their choice, and did not clearly err in
rejecting DNC’s argument that it need not provide evidence
of this factor so long as there is evidence of some disparity in
out-of-precinct voting.
V
After an exhaustive ten-day bench trial involving the
testimony of 51 witnesses and over 230 exhibits, the district
court made two key factual findings. First, it found that
and five other close races over the course of the past 100 years (from 1916
to 2012). Dissent at 84 n.2. This certainly does not compel a conclusion
that the district court’s view of the relevant evidence was clearly
erroneous.
76 DNC V. REAGAN
neither Arizona’s precinct voter system nor H.B. 2023
imposed more than a minimal burden on voters or increased
the ordinary burdens traditionally associated with voting.
Second, it found that the Arizona state legislature was not
motivated by a discriminatory purpose in enacting H.B. 2023.
These findings, which were not clearly erroneous, effectively
preclude DNC’s claims. The finding that Arizona’s two
election practices place only the most minimal burden on
voters necessarily leads to the conclusion that the practices
did not result in less opportunity for minority voters to
participate in the political process and elect representatives of
their choice for purposes of § 2 of the VRA. Further, in light
of the court’s finding that the burden imposed on voters by
the two election practices was minimal, Arizona easily
carried its burden under the Anderson/Burdick test to show
that its election practices were reasonably tailored to achieve
the State’s important regulatory interests. Finally, the court’s
finding that the legislature had no discriminatory purpose in
enacting H.B. 2023 effectively eviscerates DNC’s Fifteenth
Amendment claim. Accordingly, we affirm the district
court’s determination that Arizona’s election practices did not
violate the First and Fourteenth Amendments or § 2 of the
VRA, and H.B. 2023 did not violate the Fifteenth
Amendment.
AFFIRMED.
DNC V. REAGAN 77
THOMAS, Chief Judge, dissenting:
“No right is more precious in a free country than that of
having a voice in the election of those who make the laws
under which, as good citizens, we must live.” Wesberry v.
Sanders, 376 U.S. 1, 17 (1964). Our right to vote benefits
government as much as it benefits us: a representative
democracy requires participation, and the people require
representatives accountable to them. Arizona’s electoral
scheme impedes this ideal and has the effect of
disenfranchising Arizonans of African American, Hispanic,
and Native American descent.
Arizona’s policy of wholly discarding—rather than
partially counting—votes cast out-of-precinct has a
disproportionate effect on racial and ethnic minority groups.
It violates § 2 of the Voting Rights Act (“VRA”), and it
unconstitutionally burdens the right to vote guaranteed by the
First Amendment and incorporated against the states under
the Fourteenth Amendment.
H.B. 2023, which criminalizes most ballot collection,
serves no purpose aside from making voting more difficult,
and keeping more African American, Hispanic, and Native
American voters from the polls than white voters.
I respectfully dissent.
I
No state rejects more out-of-precinct (“OOP”) votes than
Arizona. As the district court recognized, Arizona voters are
far likelier to vote OOP than voters of other states.
Democratic Nat’l Comm. v. Reagan, No. CV-16-01065-PHX-
78 DNC V. REAGAN
DLR, 2018 WL 2191664, at *21 (D. Ariz. May 10, 2018)
(hereinafter Reagan). Indeed, “[i]n 2012 alone more than one
in every five Arizona in-person voters was asked to cast a
provisional ballot, and over 33,000 of these—more than
5 percent of all in-person ballots cast—were rejected.” Id.(internal quotation marks and alterations omitted). The
following graph compares the rate at which Arizona rejects
OOP ballots to that of other states, showing just how much of
an outlier Arizona is:
Arizona voters are likely to vote OOP for a constellation
of reasons, the most striking of which is the frequency with
which polling locations change, particularly in the highly
populated urban areas. Id. at *22. Between 2006 and 2008,
at least 43 percent of all polling places in Maricopa
County—where approximately two-thirds of Arizona’s
registered voters live—changed locations, and 40 percent
moved again between 2010 and 2012. Id. In 2016, Maricopa
DNC V. REAGAN 79
County went from 60 vote centers for the presidential
preference election to 122 polling locations for the May
special election to over 700 assigned polling locations in the
August primary and November general elections. Id. In
other words, the paths to polling places in the Phoenix area is
much like the changing stairways at Hogwarts, constantly
moving and sending everyone to the wrong place. The
effect? Voters whose polling location changed were forty
percent likelier to vote OOP. Id.Additionally, polling locations are often counterintuitive,
further driving up OOP rates. Polls are likely to be placed on
the edge of the precinct, and they are frequently clustered
together—sometimes even in the same building.
Unsurprisingly, voters who live further from their assigned
polling location than from a location nearest to them or who
are close to more than one location are likelier to end up
casting a discarded ballot. Indeed, one-quarter of OOP voters
cast their ballots in locations closer than their assigned
polling place to their homes.
Worse, voters left confused by Arizona’s labyrinthian
system often miss out on the opportunity to cast a ballot in
their assigned location, where it will be counted. At trial, all
but one of the affected witnesses testified that they were
never informed that they were voting OOP and that their
ballot would not be counted. And the one witness who was
given this crucial information was nonetheless unable to vote;
he could not make it to his assigned location before the polls
closed.
There is no question that Arizona’s practice of discarding
OOP ballots is also a practice of disproportionately discarding
ballots cast by minority voters. The district court recognized
80 DNC V. REAGAN
as much. Id. at *4, *34. Indeed, although rates of OOP
voting decreased in the last election, the disparity between
white and minority voters remains constant. In the 2016
general election, Hispanic, African American, and Native
American voters were twice as likely as white voters to vote
OOP. Id. at *34.
Race and ethnicity intersect with the socioeconomic
conditions that drive up OOP voting. It is frequently more
difficult for minority voters to locate and vote in their
assigned polling locations. As the district court noted, “OOP
voting is concentrated in relatively dense precincts that are
disproportionately populated with renters and those who
move frequently. These groups, in turn, are
disproportionately composed of minorities.” Id. at *35.
Moreover, minority voters are far likelier to face
significant barriers in traveling to the polls, barriers that
compound the difficulty faced by the voter who is informed
that she is in the wrong location and therefore needs to travel
to a different precinct. The evidence showed that African
American, Hispanic, and Native American voters in Arizona
are more likely to work multiple jobs and to lack reliable
transportation and childcare resources. Id. at *31. Given that
voters may wait as long as five hours in line just to cast a
ballot, it is not difficult to see how socioeconomic conditions
may increase the significance of barriers to ballot access.
Native American voters, many of whom live on sovereign
lands, face unique challenges. Navajo voters in Northern
Apache County, for example, are not assigned standard
addresses; their polling locations are assigned according to
“guesswork.” Id. at *35. And they often have different
DNC V. REAGAN 81
polling locations for tribal elections and state and federal
elections. Id.Despite these startling indicators, the district court
concluded that Arizona’s policy of discarding OOP ballots
violates neither § 2 of the VRA nor the First Amendment,
applicable to the states pursuant to the Fourteenth
Amendment. I respectfully disagree on both counts.
II
Arizona’s practice of discarding OOP ballots violates § 2
of the VRA. The practice “results in a denial or abridgement
of the right of any citizen of the United States to vote on
account of race or color,” 52 U.S.C. § 10301(a), and, “based
on the totality of circumstances,” members of protected
classes “have less opportunity than other members of the
electorate to participate in the political process and to elect
representatives of their choice,” id. § 10301(b).
The VRA “should be interpreted in a manner that
provides ‘the broadest possible scope’ in combating racial
discrimination.” Chisom v. Roemer, 501 U.S. 380, 403
(1991) (quoting Allen v. State Bd. of Elections, 393 U.S. 544,
567 (1969)). There are two routes to vindication of a § 2
claim—a plaintiff may satisfy either the “intent test” or the
“results test.” Thornburg v. Gingles, 478 U.S. 30, 35, 44
(1986). DNC has not alleged that the challenged practice was
initiated for a discriminatory purpose, as required to satisfy
the intent test. Rogers v. Lodge, 458 U.S. 613, 618 (1982)
(requiring a showing of “invidious discriminatory purpose”).
Thus, the operative question is whether, under “the
totality of circumstances,” members of a racial or ethnic
82 DNC V. REAGAN
minority “have less opportunity than other members of the
electorate to participate in the political process and to elect
representatives of their choice,” 52 U.S.C. § 10301(b).1
Under the results test, a challenged law or practice violates
§ 2 of the VRA if: (1) it “impose[s] a discriminatory burden
on members of a protected class, meaning that 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”; and (2) that burden is
“in part . . . caused by or linked to social and historical
conditions that have or currently produce discrimination
against members of the protected class.” League of Women
Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir.
2014) (internal quotation marks omitted) (quoting Ohio State
Conf. of the NAACP v. Husted, 768 F.3d 524, 553 (6th Cir.
2014)); accord Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir.
1
The use of the conjunction “and” in the quoted language did not
create a new and more rigorous two-part test, as the majority’s reading of
Chisom v. Roemer, 501 U.S. 380 (1991) suggests. See Op. 38–42.
Rather, in Chisom, the Court explained why it rejected the notion that
voters could not bring a vote dilution claim for judicial elections. Chisom,
501 U.S. at 396–97. The Court clearly understood that the VRA does not
demand a showing that the challenged provision may be outcome-
determinative: “Any abridgment of the opportunity of members of a
protected class to participate in the political process inevitably impairs
their ability to influence the outcome of an election.” Id. at 397. Indeed,
the Court wrote that it was a relatively “mere[ ]” thing to show that voters
are denied the ability to influence an election’s outcome; the greater
hurdle is to show that voters are not allowed to fully participate. Id. at
396–97 (rejecting the position that “a . . . practice . . . which has a
disparate impact on black voters’ opportunity to cast their ballots under
§ 2, may be challenged even if a different practice that merely affects their
opportunity to elect representatives of their choice to a judicial office may
not.”).
DNC V. REAGAN 83
2016); Ohio Democratic Party v. Husted, 834 F.3d 620, 637
(6th Cir. 2016).
Our responsibility is to interpret the law in accordance
with Congress’s “broad remedial purpose of ‘ridding the
country of racial discrimination in voting,’” Chisom,
501 U.S. at 403 (alteration omitted) (quoting South Carolina
v. Katzenbach, 383 U.S. 301, 315 (1966)). Here, we know
that African American, Hispanic, and Native American
Arizonan voters are twice as likely as white voters to be
disenfranchised by Arizona’s OOP policy, and we know that
the problem could be easily remedied. I would hold the
challenged practice in violation of § 2 and enjoin Arizona
from wholly discarding OOP ballots.
A
As the district court recognized, DNC “provided
quantitative and statistical evidence of disparities in OOP
voting.” Reagan, 2018 WL 2191664, at *34. That evidence
was “credible and shows that minorities are over-represented
among the small number of voters casting OOP ballots.” Id.Indeed, in 2016, whites were half as likely to vote OOP as
African Americans, Hispanics, or Native Americans, a pattern
displayed in all counties save one, which is predominately
white. Id. The analysis at step one of the § 2 results test
ought to end at this point, as DNC clearly met its burden of
demonstrating that Arizona’s practice of discarding OOP
ballots places a “discriminatory burden” on African
Americans, Hispanics, and Native Americans. League of
Women Voters, 769 F.3d at 240.
The district court discredited this disparity, writing:
“Considering OOP ballots represent such a small and ever-
84 DNC V. REAGAN
decreasing fraction of the overall votes cast in any given
election, OOP ballot rejection has no meaningfully disparate
impact on the opportunities of minority voters to elect their
preferred representatives.” Reagan, 2018 WL 2191664, at
*35. However, this consideration is irrelevant to step one of
§ 2’s results test, which focuses solely on the differences in
opportunity and effect enjoyed by groups of voters.
52 U.S.C. § 10301. Thus, the district court legally erred in
determining that a critical mass of minority voters must be
disenfranchised before § 2 is triggered.2 See Chisom,
501 U.S. at 397 (“Any abridgment of the opportunity of
members of a protected class to participate in the political
process inevitably impairs their ability to influence the
outcome of an election.”).
The district court also determined that, “as a practical
matter, the disparity between the proportion of minorities
who vote at the wrong precinct and the proportion of non-
minorities who vote at the wrong precinct does not result in
minorities having unequal access to the political process.”
Reagan, 2018 WL 2191664, at *35. But when, as a result,
proportionately fewer of the ballots cast by minorities are
counted than those cast by whites, that is precisely what it
means.
Under the standard applied by the district court, a poll tax
or literacy test—facially neutral, evenly applied across racial
2
What is more, in this instance, a critical mass has been shown. As
I wrote when this case was last before us, regarding DNC’s request for a
preliminary injunction, the record demonstrates vote margins as thin as
27 votes in a 2016 partisan primary and about 10,000 votes in the 2002
gubernatorial general election. Feldman v. Ariz. Sec’y of State’s Office,
842 F.3d 613, 634 (9th Cir. 2016).
DNC V. REAGAN 85
and ethnic lines—could withstand scrutiny. After all,
regardless of race, individuals who pay the tax or pass the test
get to vote. However, the § 2 results test rejects this line of
thinking. Gingles, 478 U.S. at 44 (quoting S. Rep. No. 97-
417, at 28 (1982), as reprinted in 1982 U.S.C.C.A.N. 177,
206) (“The ‘right’ question, . . . is whether ‘as a result of the
challenged practice or structure plaintiffs do not have an
equal opportunity to participate in the political processes and
to elect candidates of their choice.’”).
Similarly, it is inappropriate to require, as the district
court did, that DNC demonstrate a causal connection between
Arizona’s policy of not counting OOP ballots and the
disparate rates of OOP voting. Reagan, 2018 WL 2191664,
at *35–36. The district court misstated the burden by
concluding that DNC is challenging the voters’ own behavior
rather than the state’s policy of not counting OOP ballots.
Because the challenged practice is Arizona’s wholesale
rejection of OOP ballots, it does not matter whether such
rejection increases the rates of OOP voting.3
Moreover, the VRA does not demand the causal
connection required by the district court. Rather, it is
violated by a law that “impose[s] a discriminatory burden on
members of a protected class” when that burden is “in part
. . . caused by or linked to” discriminatory conditions.
League of Women Voters, 769 F.3d at 240. The district court
flipped the requisite connection between the burden alleged
and the conditions of discrimination by demanding DNC to
3
For the same reason, I disagree that we must be more deferential to
the State on the grounds that “the challenge is to an electoral system, as
opposed to a discrete election rule.” Op. 20 (quoting Dudum v. Arntz,
640 F.3d 1098, 1114 (9th Cir. 2011)).
86 DNC V. REAGAN
show that the burden of having votes go uncounted leads to
the socioeconomic disparities that in turn lead to OOP voting.
Applying the appropriate causation requirement leads to
a different conclusion. The evidence showed the existence of
a “causal connection between the challenged voting practice
and [a] prohibited discriminatory result.” Smith v. Salt River
Project Agr. Imp. & Power Dist., 109 F.3d 586, 595 (9th Cir.
1997) (quoting Ortiz v. City of Phila. Office of City Comm’rs
Voter Registration Div., 28 F.3d 306, 312 (3d Cir. 1994)); see
also id. at 595 (“Only a voting practice that results in
discrimination gives rise to § 2 liability.”) (emphasis added).
Here, the challenged practice—not counting OOP ballots—
results in “a prohibited discriminatory result”; a substantially
higher percentage of minority votes than white votes are
discarded. Id. at 586.
The district court recognized that socioeconomic
disparities between whites and minorities increase the
likelihood of OOP voting. In the district court’s words,
“OOP voting is concentrated in relatively dense precincts that
are disproportionately populated with renters and those who
move frequently. These groups, in turn, are
disproportionately composed of minorities.” Reagan,
2018 WL 2191664, at *35. It also recognized that
“Hispanics, Native Americans, and African Americans . . .
are significantly less likely than non-minorities to own a
vehicle, more likely to rely upon public transportation, [and]
more likely to have inflexible work schedules.” Id. at *32.
I cannot accept the proposition that, under § 2, the State
is absolved of any responsibility to correct disparities if they
can be attributed to socioeconomic factors. See Gingles,
478 U.S. at 63 (“[T]he reasons black and white voters vote
DNC V. REAGAN 87
differently have no relevance to the central inquiry of § 2.”).
When we look at the evidence through this lens, the district
court’s findings give rise to certain logical inferences. For
one, when a polling location is situated on one end of a
precinct—as often occurs—it is disproportionately difficult
for minorities to get to that location. And, in the event that a
poll worker informs the voter that she is in the wrong precinct
and her ballot will be uncounted, she is likelier to have the
opportunity to successfully travel to and vote at her assigned
polling location if she is white. The district court erred by
requiring DNC to show that “Arizona’s policy to not count
OOP ballots is . . . the cause of the disparities in OOP
voting.” Reagan, 2018 WL 2191664, at *35. The VRA
imposes no such requirement.
The district court also erred by discounting the
significance of its determination that “[p]olling place
locations present additional challenges for Native American
voters.” Id. As the trial court itself noted:
Navajo voters in Northern Apache County
lack standard addresses, and their precinct
assignments for state and county elections are
based upon guesswork, leading to confusion
about the voter’s correct polling place.
Additionally, boundaries for purposes of tribal
elections and Apache County precincts are not
the same. As a result, a voter’s polling place
for tribal elections often differs from the
voter’s polling place for state and county
elections. Inadequate transportation access
also can make travelling to an assigned
polling place difficult.
88 DNC V. REAGAN
Id. Remedying the legal error committed by the trial court in
imposing an overly onerous burden on the plaintiffs, the
court’s own findings demonstrate that African American,
Hispanic, and Native American voters are far likelier than
white voters to vote OOP and see their votes go uncounted.
In sum, I take no issue with the district court’s findings of
fact. Rather, I disagree with the application of law to the
facts, and the conclusions drawn from them. In particularly,
I respectfully disagree with the conclusion that the
findings—which conclusively demonstrate the existence of
disparate burdens on African American, Hispanic, and Native
American voters—can be discounted on the grounds that
there are not enough disenfranchised voters to matter. See
Salt River Project, 109 F.3d at 591 (citation and internal
quotation marks omitted) (noting “the [court’s] power to
correct errors of law, including those that may infect a so-
called mixed finding of law and fact, or a finding of fact that
is predicated on a misunderstanding of the governing rule of
law”).
B
As required at step two of the results test, DNC has shown
that, under the “totality of circumstances,” 52 U.S.C.
§ 10301(b), the disparate burden of disenfranchisement is “in
part . . . caused by or linked to social and historical conditions
that have or currently produce discrimination against
members of the protected class,” League of Women Voters,
769 F.3d at 240 (citation and internal quotation marks
omitted). This step “provides the requisite causal link
between the burden on voting rights and the fact that this
burden affects minorities disparately because it interacts with
social and historical conditions that have produced
DNC V. REAGAN 89
discrimination against minorities currently, in the past, or
both.” Veasey, 830 F.3d at 244. “[T]he second step asks not
just whether social and historical conditions ‘result in’ a
disparate impact, but whether the challenged voting standard
or practice causes the discriminatory impact as it interacts
with social and historical conditions.” Husted, 834 F.3d at
638 (emphasis removed).
In 1982, Congress amended the VRA in response to
Mobile v. Bolden, 446 U.S. 55 (1980), in which the Supreme
Court held that the VRA—like the Civil Rights
Amendments—was indifferent to laws with a disparate
impact on minority voters. Gingles, 478 U.S. at 35.
Consistent with Congress’s intent, courts consider a non-
exhaustive list of factors outlined in the Senate Report
accompanying the 1982 amendments. Id. As relevant here,
courts consider: (1) the history of official discrimination
connected to voting; (2) racially polarized voting patterns;
(3) whether systemic discrimination disproportionately
affects minority group’s access to the polls; (4) racial appeals
in political campaigns; (5) the number of minorities in public
office; (6) officials’ responsiveness to the needs of minority
groups; and (7) the importance of the policy underlying the
challenged restriction. Id. at 36–37 (citing S. Rep. No. 97-
417, at 28–29).
Here, each of the listed factors weigh in DNC’s favor.
1
Courts are to consider “the extent of any history of
official discrimination in the state . . . that touched the right
of the members of the minority group to register, to vote, or
otherwise to participate in the democratic process.” Gingles,
90 DNC V. REAGAN
478 U.S. at 36–37 (1986) (quoting S. Rep. No. 97-417, at
28–29). The district court classified this factor as a “mixed
bag,” but the evidence—even as it was described by the
court—points overwhelmingly in the DNC’s favor.
The district court recognized Arizona’s “history of
discrimination against Native Americans, Hispanics, and
African Americans” throughout the entirety of its statehood.
Reagan, 2018 WL 2191664, at *36–38. For example, Native
Americans could not legally vote until 1948, when the
Arizona Supreme Court held the disenfranchisement of
Native Americans unconstitutional. Id. at *36. From the
state’s inception until Congress passed the VRA, literacy tests
enacted specifically to limit “the ignorant Mexican vote”
prevented Hispanics, Native Americans, and African
Americans from full participation in the electoral franchise.
Id. The state discriminates against minorities in other ways
which ultimately limit voting participation, too, particularly
by undereducating nonwhite residents and refusing to offer
appropriate Spanish translations, practices that continue into
the present day and likely serve to widen the racial and ethnic
gaps in OOP voting. Id. at *37.
The district court noted that “discrimination against
minorities in Arizona has not been linear.” Id. However, the
fact that “[d]iscriminatory action has been more pronounced
in some periods of state history than others . . . [and] each
party (not just one party) has led the charge in discriminating
against minorities over the years” does not support the district
court’s conclusion that this factor is inconclusive. Id. at *38.
Rather, despite some advancements, most of which were
mandated by courts or Congress, Arizona’s history is marred
by discrimination. What is more, while evidence of sustained
improvement must be considered, “sporadic[] and
DNC V. REAGAN 91
serendipitous[]” indicators of improvement are not grounds
for discounting a long history of discrimination. Gingles,
478 U.S. at 76.
Additionally, the district court discounted some evidence
on the grounds that “[m]uch of the discrimination that has
been evidenced may well have in fact been the unintended
consequence of a political culture that simply ignores the
needs of minorities.” Reagan, 2018 WL 2191664, at *38.
The results test avoids such a chicken-or-the-egg inquiry.
Gingles, 478 U.S. at 63. When Congress amended the VRA
in 1982, it did so in recognition that discrimination need not
be intentional to disenfranchise minority groups.
2
Courts are also tasked with considering “the extent to
which voting in the elections of the state . . . is racially
polarized.” Gingles, 478 U.S. at 37 (quoting S. Rep. No. 97-
417, at 28–29). The district court correctly concluded that
“Arizona has a history of racially polarized voting, which
continues today.” Reagan, 2018 WL 2191664, at *38. This
factor was never in dispute.
However, it bears mentioning the degree to which
Arizona politics are racially polarized. In reasonably
contested elections, 59% of white Arizonans vote Republican,
in contrast to 35% of Hispanic Arizonans and an
undetermined minority of African American and Native
American voters. Arizona politics are even more polarized
along the lines of the candidate’s ethnicity; in non-landslide
district-level contests between a Hispanic Democratic
candidate and a white Republican candidate, 84% of Hispanic
voters, 77% of Native American voters, 52% of African
92 DNC V. REAGAN
American voters, and only 30% of white voters select the
Hispanic candidate.
3
Similarly, there is no dispute that “members of the
minority groups[s] in the state . . . bear the effects of
discrimination in such areas as education, employment and
health, which hinder their ability to participate effectively in
the political process[.]” Gingles, 478 U.S. at 37 (quoting
S. Rep. No. 97-417, at 28–29). As the district court noted,
“[r]acial disparities between minorities and non-minorities in
socioeconomic standing, income, employment, education,
health, housing, transportation, criminal justice, and electoral
representation have persisted in Arizona.” Reagan, 2018 WL
2191664, at *38. Although the district court’s order only
briefly mentions this factor, the evidence is overwhelming.
Indeed, compared to white Arizonans, black Arizonans are
over twice as likely to live in poverty, Hispanic Arizonans are
nearly three times as likely, and Native Americans are almost
four times as likely. Id. at *31.
4
Arizona politicians have a long history of making “overt
or subtle racial appeals,” and that history extends to the
present day. Gingles, 478 U.S. at 37 (quoting S. Rep. No. 97-
417, at 28–29). As the district court noted, candidates have
relied on racial appeals since the 1970s. Reagan, 2018 WL
2191664, at *38. For example, during Raul Castro’s
successful gubernatorial run in the 1970s, his opponent’s
supporters called on the electorate to choose the candidate
who “looked like a governor,” and a newspaper printed Fidel
DNC V. REAGAN 93
Castro’s face below a headline reading, “Running for
governor of Arizona.” Id.More recently, too, during his winning campaign for State
Superintendent of Public Office, John Huppenthal, a white
candidate running against a Hispanic competitor, ran an ad
touting that he was “one of us,” that he was opposed to
bilingual education, and that he “will stop La Raza,” an
influential Hispanic civil rights organization. Id. And when
former Maricopa County Attorney Andrew Thomas ran for
governor, one of his ads included an image of the Mexican
flag with a red line striking through it. Id. Moreover, as I
discuss at length below, racial appeals were made specifically
in regard to H.B. 2023. These racial appeals “lessen to some
degree the opportunity of [minorities] to participate
effectively in the political processes and to elect candidates
of their choice.” Gingles, 478 U.S. at 40.
5
Also relevant is “the extent to which members of the
minority group[s] have been elected to public office in the
jurisdiction.” Gingles, 478 U.S. at 37 (quoting S. Rep. No.
97-417, at 28–29). The district court noted that “the disparity
in the number of minority elected officials in Arizona has
declined.” Reagan, 2018 WL 2191664, at *39. However, a
“decline” does not translate to equity. Gingles, 478 U.S. at
76. While nonwhites compose 44% of Arizona’s total
population, only two minority statespersons—one Hispanic
governor in 1974 and one African American Corporation
Commissioner in 2008—have been elected to statewide
positions in the last 50 years. Id. There are currently no
minorities in statewide office. Minorities hold only 22% of
state congressional seats and 9% of judgeships.
94 DNC V. REAGAN
Minorities are seriously underrepresented in public office
in Arizona, and the problem is most severe at the statewide
level. Significantly, because Arizona could not be required
to count votes for which an OOP voter is not qualified to
vote, Arizona’s practice of wholly discarding OOP ballots
only has an effect on top-of-the-ticket races, where
representation is at its lowest.
6
A § 2 claim is likelier to succeed where “there is a
significant lack of responsiveness on the part of elected
officials to the particularized needs of the members of the
minority group[s].” Gingles, 478 U.S. at 37 (quoting S. Rep.
No. 97-417, at 28–29). The district court found that DNC’s
evidence was “insufficient to establish a lack of
responsiveness on the part of elected officials to
particularized needs of minority groups.” Reagan, 2018 WL
2191664, at *39. It bolstered its conclusion with evidence
that the Arizona Citizens Clean Elections Commission
engages in outreach with minority populations, but
engagement by one entity is not conclusive, especially in the
face of overwhelming evidence of government
nonresponsiveness.
The district court ignored evidence that Arizona
underserves minority populations. For example, it failed to
recognize that Arizona was the last state in the nation to join
the Children’s Health Insurance Program, which may explain,
in part, why forty-six states have better health insurance
coverage for children. Similarly, it ignored evidence that
Arizona’s public schools are drastically underfunded; in fact,
in 2016 Arizona ranked 50th among the states and the District
of Columbia in per pupil spending on public elementary and
DNC V. REAGAN 95
secondary education. Given the well-documented evidence
that minorities are likelier to depend on public
services—evidence generally credited by the district
court—Arizona’s refusal to provide adequate state services
demonstrates its nonresponsiveness to minority needs.4
Indeed, the district court’s finding is directly contradicted
by its recognition, later in its order, that Arizona has a
“history of advancing partisan objectives with the unintended
consequence of ignoring minority interests.” Reagan,
2018 WL 2191664, at *43. And, as I discuss below, there is
significant specific evidence of the legislature’s disregard for
minority needs in the legislative history leading to the
passage of H.B. 2023. The district court failed to consider
important facts and overstated the significance of one minor
item of evidence. It clearly erred in finding that this factor
does not support DNC. See, e.g., Myers v. United States,
652 F.3d 1021, 1036 (9th Cir. 2011) (holding that the district
court clearly erred when it ignored evidence contradicting its
findings).
7
Courts may also consider “whether the policy underlying
the state . . . practice . . . is tenuous.” Gingles, 478 U.S. at 37
4
Rather than discuss the evidence supporting DNC, the district court
simply discredited the testimony of one of DNC’s experts, Dr. Allan
Lichtman, on the grounds that he “ignored various topics that are relevant
to whether elected officials have shown responsiveness, and he did not
conduct research on the issues in Arizona.” Reagan, 2018 WL 2191664,
at *39. However, the court also found “Dr. Lichtman’s underlying
sources, research, and statistical information [to be] useful.” Id. at *2.
Thus, my analysis incorporates only Dr. Lichtman’s “underlying sources,
research, and statistical information.”
96 DNC V. REAGAN
(quoting S. Rep. No. 97-417, at 28). In its analysis of this
factor, the district court erroneously misstated the inquiry as
whether the precinct-based system—rather than the practice
of wholly discarding OOP votes—is justified. Finding the
precinct-based system well-supported, the district court
determined only that “Arizona’s policy to not count OOP
ballots is one mechanism by which it strictly enforces this
system to ensure that precinct-based counties maximize the
system’s benefits.” Reagan, 2018 WL 2191664, at *39.
However, the district court attempted no further explanation,
fully adopting the state’s explanation for its practice of
discarding votes without considering its logic.
Arizona’s OOP policy does not serve any purpose beyond
administrative ease. Simply put, it takes fewer resources to
count fewer ballots. There is no indication that there is any
correlation between the precinct-based model and the OOP
policy. Because the analysis of this factor is essentially no
different than the analysis under step two of the
Anderson/Burdick test, I will not discuss it at length here.
Because it misstated DNC’s challenge, the district court
clearly erred in its finding regarding the justifications for the
OOP policy. There is no indication that the precinct-based
electoral scheme runs more effectively because Arizona
refuses to count OOP votes.
8
Summing up its analysis, the district court found that
“[some] of the germane Senate Factors . . . are present in
Arizona and others are not.” Reagan, 2018 WL 2191664, at
*40. Because DNC showed that each of the relevant factors
was satisfied, the district court’s characterization of the
evidence was clearly erroneous.
DNC V. REAGAN 97
Further, the district court took issue with the Senate
Factors themselves, writing that DNC’s “causation theory is
too tenuous to support [its] VRA claim because, taken to its
logical conclusion, virtually any aspect of a state’s election
regime would be suspect as nearly all costs of voting fall
heavier on socioeconomically disadvantaged voters.” Id.However, the results test was not on trial here; Congress
specifically amended the VRA in response to such concerns.
Gingles, 478 U.S. at 43–44 (“The Senate Report which
accompanied the 1982 amendments . . . dispositively rejects
the position of the plurality in Mobile v. Bolden, 446 U.S. 55(1980), which required proof that the contested electoral
practice or mechanism was adopted or maintained with the
intent to discriminate against minority voters.”).
DNC demonstrated that Arizona’s practice of not
counting OOP ballots “results in a denial or abridgement of
the right of any citizen of the United States to vote on account
of race or color,” 52 U.S.C. § 10301(a), and that, “based on
the totality of circumstances,” members of protected classes
“have less opportunity than other members of the electorate
to participate in the political process and to elect
representatives of their choice,” id. § 10301(b).
III
Arizona’s practice of wholly discarding OOP votes also
violates the First Amendment, which applies to the states
pursuant to the Fourteenth Amendment. In deciding
otherwise, the district court made several legal errors,
discussed below. Upon correcting the district court’s errors
and applying the Anderson/Burdick test to the uncontested
facts, the record compels a contrary conclusion. See United
States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1998)
98 DNC V. REAGAN
(citation omitted) (clear error standard met when appellate
court is left with the “definite and firm conviction” that a
mistake was made). Arizona unconstitutionally infringes
upon the right to vote by disenfranchising voters unable to
find or travel to the correct precinct, even as to those contests
for which the voter is qualified to vote.
The First and Fourteenth Amendments protect individual
voting rights by limiting state interference with those rights.
Reynolds v. Sims, 377 U.S. 533, 554–55 (1964); Tashjian v.
Republican Party of Conn., 479 U.S. 208, 217 (1986). While
“the right[s] to vote in any manner and . . . to associate for
political purposes” are not “absolute,” Burdick v. Takushi,
504 U.S. 428, 433 (1992), neither is the state’s
constitutionally designated authority to regulate the “Times,
Places and Manner of holding Elections for Senators and
Representatives,” U.S. Const. art. I, § 4, cl. 1; Williams v.
Rhodes, 393 U.S. 23, 29 (1968) (a state’s power to regulate
elections is “subject to the limitation that [it] may not be
exercised in a way that violates other . . . provisions of the
Constitution.”). Thus, “[t]he power to regulate the time,
place, and manner of elections does not justify, without more,
the abridgment of fundamental rights, such as the right to
vote.” Tashjian, 479 U.S. at 217.
Courts apply the Anderson/Burdick test, a “flexible”
balancing test, to determine whether a voting regulation runs
afoul of the First Amendment right to associate. Burdick, 504
U.S. at 434. The Court must “weigh ‘the character and
magnitude of the asserted injury to the rights . . . that the
plaintiff seeks to vindicate’ against ‘the precise interests put
forward by the State as justifications for the burden imposed
by its rule,’ taking into consideration ‘the extent to which
those interests make it necessary to burden the plaintiff’s
DNC V. REAGAN 99
rights.’” Id. (quoting Anderson v. Celebrezze, 460 U.S. 780,
789 (1983)). There is no substitute for the “balancing and
means-end fit framework” required under Anderson/Burdick;
even if a burden is minimal, it must be justified. Pub.
Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1025 (9th
Cir. 2016) (en banc).
A
The burden imposed by Arizona’s refusal to count OOP
votes is severe. The district court and the majority
mischaracterize that burden as the burden of complying with
the State’s general requirement that individuals vote in their
assigned precinct. However, the burden here is the burden of
disenfranchisement suffered by those voters whose votes are
discarded even as to those elections in which the voter is
qualified to vote. DNC brought suit alleging that Arizona’s
practice of discarding OOP ballots unconstitutionally
infringes upon individual voting rights. They sought an
injunction barring Arizona from continuing that practice.
They did not challenge Arizona’s precinct-based system in its
entirety.
1
The defendants and intervenors rely on semantics, casting
the discarding of OOP ballots as the “consequence” of
Arizona’s precinct system. However, wholly discarding OOP
ballots is not a fundamental requirement of—or even a logical
corollary to—a precinct-based model. Instead, Arizona’s
100 DNC V. REAGAN
practice of discarding such ballots is exactly that—a practice.
And it can change.5
The district court legally erred when it restated the burden
along the lines urged by the defendants and intervenors.6
Concluding that the burden was that of voting in the correct
precinct, the district court determined that Arizona’s voters
are themselves partially responsible for any burden because
they are so likely to change residences and to rent rather than
own their homes. Reagan, 2018 WL 2191664, at *22.
However, if such a consideration were permissible, a poll tax
could be upheld on the grounds that poor voters could simply
earn more money or spend the money that they do earn
differently—propositions that have, thankfully, been rejected.
See Harper v. Virginia State Board of Elections, 383 U.S. 663(1966).
The court also rejected DNC’s challenge because “there
is no evidence that it will be easier for voters to identify their
correct precincts if Arizona eliminated its prohibition on
5
Indeed, the district court determined in its analysis of standing,
which has not been contested on appeal, that the alleged injury—not
counting OOP ballots—is redressable. Reagan, 2018 WL 2191664, at
*10.
6
I respectfully disagree with the majority that the district court rightly
restated DNC’s challenge because “under DNC’s theory, a state could not
enforce even a rule requiring registration, because the state’s failure to
count the vote of a non-registered voter would ‘disenfranchise’ the
noncompliant voter.” Op. 61–62. The Anderson/Burdick test is a
balancing test. If a basic registration requirement imposes a burden on
voters—and it does—it will still be upheld if that burden is justified—and
it is. DNC has merely asked us to apply the Anderson/Burdick framework
to its challenge; it has not asked for a per se rule striking any policy or law
under which votes go uncounted.
DNC V. REAGAN 101
counting OOP ballots.” Reagan, 2018 WL 2191664, at *23.
But the problem is not with the voters, who are dealing with
a system insensitive to their needs; the problem is with an
electoral system that refuses to acknowledge and respond to
the needs of the State’s voting population. A democracy
functions only to the degree that it fosters participation.
The district court also legally erred when it equated
Arizona’s policy of discarding OOP votes with similar
policies in other states, policies which were not on trial in this
lawsuit. Voting rights claims demand an “intensely local
appraisal.” Gingles, 478 U.S. at 78 (quoting White v.
Regester, 412 U.S. 755, 769 (1973)). What is more, the
constitutionality of these other states’ policies has not been
affirmatively decided. Thus, the fact that those other states
also have policies of not counting votes cast OOP is not
indicative of the constitutionality of Arizona’s policy.
Thus, the district court erred as a matter of law in
determining that “[t]hough the consequence of voting OOP
might make it more imperative for voters to correctly identify
their precincts, it does not increase the burdens associated
with doing so.” Reagan, 2018 WL 2191664, at *22. The
burden identified by DNC and faced by the voter is
disenfranchisement.
2
The burden is severe. Because the district court misstated
the burden, it also miscalculated its severity. For example,
the district court determined that the burden is slight based on
its finding that “there is no evidence that it will be easier for
voters to identify their correct precincts if Arizona eliminated
102 DNC V. REAGAN
its prohibition on counting OOP ballots.” Id. at *23. But that
reasoning turns the appropriate legal framework on its head.
Under the first prong of the Anderson/Burdick test, the
issue is the severity of the burden faced by voters whose
ballots are discarded because they voted OOP. Pub. Integrity
Alliance, 836 F.3d at 1024 n.2 (“[C]ourts may consider not
only a given law’s impact on the electorate in general, but
also its impact on subgroups, for whom the burden, when
considered in context, may be more severe.”). Perhaps
Arizona’s electoral scheme justifies that burden, no matter its
severity. If so, however, that determination comes in under
step two of the Anderson/Burdick analysis.
For those whose votes go uncounted, “there can be no do-
over and no redress.” League of Women Voters, 769 F.3d at
247. To determine the burden, the Court looks not to the
voters unaffected by the practice, as the district court did,
Reagan, 2018 WL 2191664, at *21 (“Arizona’s rejection of
OOP ballots . . . has no impact on the vast majority of
Arizona voters.”), but to those who suffer the burden,
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 186
(2008) (plurality opinion); Pub. Integrity All., 836 F.3d at
1024 n.2. And those voters are effectively rendered unable to
vote in elections for which they are qualified and in which
they cast otherwise legitimate ballots. There is no burden
more severe in the voting rights context.
However, even if the district court had properly stated the
burden alleged, its ultimate finding would be clearly
erroneous. The district court found that Arizona makes it
easy for voters to find their precincts. Reagan, 2018 WL
2191664, at *23. The district court’s finding is inconsistent
DNC V. REAGAN 103
with the evidence presented and generally credited by the
court.
The government bears responsibility for the high rate of
OOP voting. First, precincts appear to change polling
locations and practices even more often than residents change
homes. Id. at *22 (“[I]n Maricopa County, between 2006 and
2008 at least 43 percent of polling locations changed from
year to the next[.]”). Second, polling places are often in
counterintuitive locations, far from some residents’ homes.
Id. And third, the district court noted (and did not discredit)
evidence that election workers fail to inform voters that they
are in the wrong precinct and that a provisional ballot will not
be counted. Id. Thus, the district court clearly erred in
determining that Arizona does all it should to prevent OOP
voting.
B
The severe burden faced by OOP voters is not outweighed
by a sufficiently important government interest. Pub.
Integrity All., 836 F.3d at 1024. Because the district court
misstated the burden, it also overstated the government
interest by focusing on the “numerous and significant
advantages” of a precinct-based voting model. Reagan,
2018 WL 2191664, at *24. The inquiry should instead be
whether the state can justify the interests served by the
challenged practice of not counting OOP ballots. It cannot.
As the district court itself found, “[c]ounting OOP ballots
is administratively feasible.” Id. at *25. This is demonstrated
by: (1) the methods used by the 20 states that use a precinct-
based system and nonetheless count OOP ballots; and
(2) Arizona’s readily transferable method “to process certain
104 DNC V. REAGAN
types of ballots that cannot be read by an optical scan voting
machine” and “some provisional ballots cast by voters who
are eligible to vote in federal elections, but whom Arizona
does not permit to vote in state elections.” Id. Certainly,
Arizona can count the votes cast by all qualified voters.
The district court determined that, although OOP votes
could be counted, Arizona nonetheless could justify its policy
on the basis of assumptions regarding what could happen if
the state counted all of the ballots that it received. Voters
may “decide to vote” out of precinct or “incorrectly believe
that they can vote at any location and receive the correct
ballot.” Id. Worse, they could “be nefariously directed to
vote elsewhere.” Id. This reasoning is illogical and
unsupported by the facts. There is no demonstrated increase
in OOP voting in states where those votes are counted than in
Arizona (where, of course, OOP voting is at its highest level).
And “nefarious” interests would be far better served by
misdirecting voters if their out-of-precinct vote would not be
counted at all than if it were partially tallied.7
Arizona’s interest in administrative ease does not
justify the severe burden of disenfranchisement. I would
hold Arizona’s practice of discarding OOP ballots
unconstitutional.
7
Under the current system, for example, a Democrat could
conceivably misdirect likely Republican voters to the wrong precinct in
order to render their ballots null. However, if OOP ballots counted, the
Democrat would have less incentive, as the Republicans’ choices for
statewide and federal office would still register.
DNC V. REAGAN 105
IV
Next, DNC challenges a recently enacted law, H.B. 2023,
which criminalizes most ballot collection. Under the law, a
person who collects another’s ballot commits a felony unless
the collector is an official engaged in official duties or the
voter’s family member, household member, or caregiver.
Ariz. Rev. Stat. § 16-1005(H)–(I).
H.B. 2023 was not Arizona’s first attempt to limit ballot
collection. Prior to Shelby County v. Holder, 570 U.S. 529(2013), Arizona was subject to the VRA’s § 5 preclearance
requirements. In 2011, Arizona passed S.B. 1412, which
criminalized the collection of more than ten ballots by any
one individual. Reagan, 2018 WL 2191664, at *42. Arizona
submitted the bill to the DOJ for preclearance, and the DOJ
“precleared all provisions except for the provision regulating
ballot collection,” about which the DOJ requested further
information in order to ensure that the provision had neither
the purpose nor the effect of limiting minority participation
in voting. Id. Arizona did not proffer the requested
information, instead withdrawing the provision before
formally repealing the law. Id. With good reason: the State
Elections Director, who helped draft the bill, told the DOJ
that the law was “targeted at voting practices . . . in
predominantly Hispanic areas” and that state officials were
expecting § 5 review. Withdrawing a provision was not
standard procedure for Arizona, which fully or partially
withdrew only 6 of its 773 preclearance provisions. Id.
In 2013, the legislature tried a new approach. It passed
H.B. 2305 “along nearly straight party lines in the waning
hours of the legislative session.” Id. The law “banned
partisan ballot collection and required other ballot collectors
106 DNC V. REAGAN
to complete an affidavit stating that they had returned the
ballot.” Id. The public outcry was immediate, with “citizen
groups organiz[ing] a referendum effort and collect[ing] more
than 140,000 signatures to place H.B. 2305 on the ballot for
a straight up-or-down vote” in the next election. Id. “Rather
than face a referendum,” which would have barred further
related legislation without a supermajority vote, “Republican
legislators again repealed their own legislation along party
lines.” Id. At the time, then-State Senator Michele Reagan
(now Secretary of State and defendant to this action), who
sponsored the bill, stated that the legislature would
reintroduce the bill, but in smaller fragments. Id.
As the district court noted, H.B. 2023 was passed not only
“on the heels of” these earlier bills, but also “in the context of
racially polarized voting” and “increased use of ballot
collection as a Democratic [get-out-the-vote] strategy in . . .
minority communities.” Id. at *41. Legislators supporting
the bill were particularly motivated by two items of evidence:
the wildly irrational testimony of then-State Senator Don
Shooter, and a racist video prepared by former Maricopa
Republican Party Chair A.J. LaFaro, in which LaFaro claims
that a Hispanic man engaged in a lawful get-out-the-vote
ballot collection effort is a “thug” breaking the law. Id. at
*38–39, *41.
DNC brings three challenges to H.B. 2023. It argues that
the provision was motivated by racial animus, in violation of
the Fourteenth and Fifteenth Amendments and § 2 of the
VRA. It claims that it has a discriminatory effect, also in
violation of § 2. And, finally, it contends that the law
unreasonably burdens voters’ First Amendment rights. I
agree on all counts and would hold the provision invalid
under the VRA and the United States Constitution.
DNC V. REAGAN 107
V
H.B. 2023 was enacted for the purpose of suppressing
minority votes, in violation of § 2 of the VRA and the
Fourteenth and Fifteenth Amendments. Although lawmakers
were also motivated by partisanship, their intent to reduce the
total number of Democratic votes does not render the law
constitutional.
Under the Fourteenth and Fifteenth Amendments and § 2
of the VRA, a law passed with the intent to discriminate
against racial or ethnic minorities cannot stand. The law
imposes a high burden on plaintiffs, who must show “[p]roof
of racially discriminatory intent or purpose.” Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
265 (1977). Voting regulations are unconstitutional when
they are “‘conceived or operated as purposeful devices to
further racial discrimination’ by minimizing, cancelling out
or diluting the voting strength of racial elements in the voting
population.” Rogers, 458 U.S. at 617 (quoting Whitcomb v.
Chavis, 403 U.S. 124, 149 (1971)). A plaintiff need not show
that officials acted solely to further a racially motivated
agenda, Arlington Heights, 429 U.S. at 265, but the ultimate
issue is whether “the legislature enact[ed] a law ‘because of,’
and not ‘in spite of,’ its discriminatory effect,” N.C. State
Conf. of NAACP v. McCrory, 831 F.3d 204, 220 (2016)
(quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279
(1979)).
“Necessarily, an invidious discriminatory purpose may
often be inferred from the totality of the relevant facts . . . .”
Rogers, 458 U.S. at 618 (quoting Washington v. Davis,
426 U.S. 229, 242 (1976)). “Thus determining the existence
of a discriminatory purpose ‘demands a sensitive inquiry into
108 DNC V. REAGAN
such circumstantial and direct evidence of intent as may be
available.’” Id. (quoting Arlington Heights, 429 U.S. at 266).
Courts consider the Arlington Heights factors, a non-
exhaustive list of considerations, to determine whether a law
was enacted to satisfy a motive to discriminate: (1) the
historical background and sequence of events leading to
enactment; (2) substantive or procedural departures from the
normal legislative process; (3) relevant legislative history;
and (4) the impact of the law on a particular racial group.
Arlington Heights, 429 U.S. at 266–68.
Here, all four factors weigh in favor of DNC.
A
The historical background of a challenged provision is an
important evidentiary source, “particularly if it reveals a
series of official actions taken for invidious purposes.” Id. at
267. As the district court recognized, “H.B. 2023 emerged in
the context of racially polarized voting, increased use of
ballot collection as a Democratic [get-out-the-vote] strategy
in low-efficacy minority communities, and on the heels of
several prior efforts to restrict ballot collection.” Reagan,
2018 WL 2191664, at *41. And as discussed below, in my
analysis of § 2’s results test, a longer view of history
similarly weighs in favor of DNC. Quite simply, the
historical background suggests that the restriction was
enacted in order to prevent minority ballots from being
counted.
The fact that the minority votes would help Democratic
candidates does not alter the analysis. See id. (suggesting that
because “some individual legislators and proponents were
DNC V. REAGAN 109
motivated in part by partisan interests”8 they were not
motivated by racially discriminatory interests). Indeed, if that
were the case, consideration for racially polarized voting
patterns—a constant in VRA and constitutional voting
regulation challenges—would be impermissible or weigh in
favor of upholding a regulation. By nature of the political
process, an unconstitutionally discriminatory voting
regulation is a law enacted by the political party in power in
order to maintain power by preventing minorities from
voting, assuredly because they belong to the other political
party.
The first Arlington Heights factor suggests discriminatory
motive.
B
Under Arlington Heights courts consider “the defendant’s
departures from its normal procedures or substantive
conclusions.” Pac. Shores Props., LLC v. City of Newport
Beach, 730 F.3d 1142, 1159 (9th Cir. 2013) (citing Arlington
Heights, 429 U.S. at 266–68). The district court recognized
that “the circumstances surrounding” H.B. 2023 were
“somewhat suspicious.” Reagan, 2018 WL 2191664, at *42.
This is an understatement. H.B. 2023 flowed directly out of
the Arizona legislature’s two prior attempts to limit ballot
8
The majority concludes that the district court “did not err in giving
little weight to evidence that ‘some individual legislators and proponents
were motivated in part by partisan interests.’” Op. 53 (quoting Reagan,
2018 WL 2191664, at *43). But the court did not discredit this evidence.
Rather it relied on it to show proof of nondiscrimination.
110 DNC V. REAGAN
collection.9 The law enacted does not cure the intent to
discriminate demonstrated by its precursors; rather, H.B.
2023 was part of the same general strategy of limiting the
minority vote by limiting ballot collection.
This Arlington Heights factor suggests discriminatory
motive.
C
“The legislative . . . history may be highly relevant,
especially where there are contemporary statements by
members of the decisionmaking body . . . .” Arlington
Heights, 429 U.S. at 267. The district court found evidence
of racial animus in the legislative history but discounted its
significance, suggesting that any initial discriminatory motive
was cured because some legislators acted either out of self-
interest or an unfounded but sincere belief that voter fraud
was likely.
The district court’s reasoning is clearly erroneous. First,
partisan self-interest cannot absolve discriminatory intent. If
we were to allow racially motivated voting schemes
whenever those schemes serve partisan interests, the
exception would swallow the rule, and there would be no
prohibition on enacting laws in order to discriminate.
Second, the sincerity of the legislators’ belief in a wholly
9
While it is true that discriminatory intent as to an earlier law does
not necessarily carry through to any other provision on the subject, Op. 56,
we do not have to suspend common sense. The recency of the earlier
provisions, coupled with relevant public statements and the weak
legislative record supporting H.B. 2023, places H.B. 2023 on one end of
an unbroken line beginning just a few years earlier with S.B. 1412.
DNC V. REAGAN 111
theoretical risk of voter fraud is—as the district court itself
suggested—indicative of discriminatory intent. Reagan,
2018 WL 2191664, at *41 (describing legislators’ motives as
“perhaps implicitly informed by racial biases”).
Moreover, the district court’s own specific factual
findings belie its ultimate conclusion on the third Arlington
Heights factor. The district court determined that the
proponents of H.B. 2023 voted for the bill in response to two
pieces of evidence: (1) the “demonstrably false,” “unfounded
and often farfetched allegations of ballot collection fraud”
made by former Arizona State Senator Don Shooter; and
(2) a “racially-tinged” video created by Maricopa County
Republican Chair A.J. LaFaro (the “LaFaro Video”). Id.Because there was “no direct evidence of ballot collection
fraud . . . presented to the legislature or at trial,” the district
court understood that Shooter’s allegations and the LaFaro
Video were the reasons the bill passed. Id. (“Shooter’s
allegations and the LaFaro Video were successful in
convincing H.B. 2023’s proponents that ballot collection
presented opportunities for fraud that did not exist for in-
person voting . . . .”).
Both of these evidentiary items demonstrate racial
animus. As the district court made clear, Senator Shooter’s
testimony regarding the existence and prevalence of voter
fraud was not only incorrect but in fact “unfounded and often
farfetched.” Id. If Senator Shooter was sincere, his distorted
view of reality is explainable only by what the district court
downplayed as being “implicitly informed by racial
biases,”—or, in starker terms, by racism. Id. An unfounded
and exploited fear that members of minority groups are
“engage[d] in nefarious activities,” id., supports a finding of
racial animus. And if Senator Shooter was insincere, he
112 DNC V. REAGAN
purposefully distorted facts in order to prevent Hispanics—
who generally preferred his opponent—from voting. Id.(“Due to the high degree of racial polarization in his district,
Shooter was in part motivated by a desire to eliminate what
had become an effective Democratic [get-out-the-vote]
strategy. . . . Indeed, Shooter’s 2010 election was close: he
won with 53 percent of the total vote, receiving 83 percent of
the non-minority vote but only 20 percent of the Hispanic
vote.”).
The LaFaro Video is even more damning. The video
shows a Hispanic man, a volunteer with a get-out-the-vote
organization, delivering early ballots to the polls. The video
is itself wholly mundane; it is eight soundless minutes of a
man moving completed ballots from a cardboard box to the
ballot box. It markedly “did not show any obviously illegal
activity.” Id. at *39. However, LaFaro provided a voice-over
narration, “includ[ing] statements that the man was acting to
stuff the ballot box; that LaFaro did not know if the person
was an illegal alien, a dreamer, or citizen, but knew that he
was a thug; and that LaFaro did not follow him out to the
parking lot to take down his tag number because he feared for
his life.” Id. at *38. It is LaFaro’s narration—not the dull
raw material showing a Hispanic man dropping off
ballots—that “became quite prominent in the debates over
H.B. 2023.” Id. at *39. As the district court recognized, the
LaFaro Video evidences racial animus.
After recognizing the existence of discriminatory intent,
the district court seems to have determined that intent was
later cured because the bill “found support among some
minority officials and organizations” and because some
lawmakers opposed H.B. 2023 for reasons other than that it
being grounded in racial discrimination. Id. at *41. The
DNC V. REAGAN 113
district court’s reasoning is incorrect. As the Supreme Court
has stated, there is no room for judicial deference “[w]hen
there is . . . proof that a discriminatory purpose has been a
motivating factor in the decision.” Arlington Heights,
429 U.S. at 265–66.
Moreover, the district court was wrong to determine that
a law is not racially motivated if any people of color support
it. Rather, the evidence that particular Hispanic and African
American Arizonans supported H.B. 2023 simply
demonstrates that people of color have diverse interests, some
of which may outweigh potential concerns that a law was
enacted with the intent to discriminate. And although one
lawmaker “testified that she has no reason to believe H.B.
2023 was enacted with the intent to suppress Hispanic
voting,” the district court also recognized that “some
Democratic lawmakers accused their Republican counterparts
of harboring partisan or racially discriminatory motives.”
Reagan, 2018 WL 2191664, at *41. Again, a diversity of
perspectives is neither surprising nor particularly telling,
especially when the operative legal test recognizes that a law
may be unconstitutionally discriminatory even if it is not
driven solely by racial animus: “legislators . . . are properly
concerned with balancing numerous competing
considerations.” Arlington Heights, 429 U.S. at 265.
The district court’s concerns were also assuaged because
Shooter’s “demonstrably false” allegations and “the racially-
tinged LaFaro Video . . . spurred a larger debate in the
legislature about the security of early mail voting as
compared to in-person voting.” Reagan, 2018 WL 2191664,
at *41. The court’s finding is neither here nor there. The
legislature did not act to limit all early voting, but it targeted
a specific practice known to be popular among minority
114 DNC V. REAGAN
voters, despite the absence of any evidence that ballot
collection was less secure than other early voting methods.
This Arlington Heights factor weighs in favor of DNC.
D
“The impact of the official action whether it ‘bears more
heavily on one race than another’” is “important” to the
analysis of whether a law was enacted to serve a
discriminatory motive. Arlington Heights, 429 U.S. at 266(quoting Davis, 426 U.S. at 242.) The district court wholly
failed to measure H.B. 2023’s impact on minority voters in its
discussion of Arlington Heights. Rather, it counterintuitively
concluded that concerns about the law’s effect on minority
groups “show[] only that the legislature enacted H.B. 2023 in
spite of its impact on minority [get-out-the-vote] efforts, not
because of that impact.” Reagan, 2018 WL 2191664, at *43.
The district court’s determination is not only illogical but also
out of place in its discussion of the fourth Arlington Heights
factor. As I will discuss in my analysis of the § 2 results test,
H.B. 2023 disproportionately affects minority voters.
Like the first three factors considered, the fourth and final
factor supports a conclusion that the law is motivated by
racial animus. Thus, under the purpose test of § 2 of the
VRA and the Fourteenth and Fifteenth Amendments, H.B.
2023 cannot survive.
VI
Like Arizona’s practice of discarding OOP votes, H.B.
2023 imposes an unlawful discriminatory burden on minority
voters. As discussed above, § 2 of the VRA provides that
DNC V. REAGAN 115
“[n]o voting . . . standard, practice, or procedure shall be
imposed or applied . . . in a manner which results in a denial
or abridgement of the right of any citizen of the United States
to vote on account of race or color.” 52 U.S.C. § 10301(a).
Under the results test, “[t]he essence of a § 2 claim is that
a certain electoral law, practice, or structure interacts with
social and historical conditions to cause an inequality in the
opportunities enjoyed by [minority] and white voters to elect
their preferred representatives.” Gingles, 478 U.S. at 47. The
test is one of the “totality of circumstances.” 52 U.S.C.
§ 10301(b); Gingles, 478 U.S. at 43. In this instance, the
totality of the circumstances conclusively demonstrates that
H.B. 2023 disproportionately burdens minority voters, and
that burden can be traced directly to historical and social
conditions of discrimination. League of Women Voters,
769 F.3d at 240.
A
The first prong of the results test “inquires about the
nature of the burden imposed and whether it creates a
disparate effect.” Veasey, 830 F.3d at 244.
The district court suggested that DNC’s challenge ought
to fail at step one because of a lack of quantitative evidence,
but it ultimately based its disposition on its determination that
“Plaintiffs’ circumstantial and anecdotal evidence is
insufficient to establish a cognizable disparity under § 2.”
Reagan, 2018 WL 2191664, at *31. The district court erred
as a matter of law when it determined that although, “prior to
H.B. 2023’s enactment minorities generally were more likely
than non-minorities to give their early ballots to third
parties,” id., it could not find for DNC because it could not
116 DNC V. REAGAN
“speak in more specific or precise terms than ‘more’ or
‘less.’” Id. at *33.
While it is true that a plaintiff bears the burden of
demonstrating the existence and extent of a disparity,
Gonzalez v. Arizona, 677 F.3d 383, 406 (9th Cir. 2012) (en
banc), it is not true that the plaintiff is required to do so with
statistical evidence, 52 U.S.C. § 10301(b) (providing that
relevant inquiry is into “the totality of circumstances”). The
question is simply whether members of the affected ethnic
and racial minority groups “have less opportunity than other
members of the electorate to participate in the political
process and to elect representatives of their choice.” Id.§ 10301(b).
The evidence presented at trial weighed overwhelmingly
in DNC’s favor. For political and socioeconomic reasons,
H.B. 2023 is far likelier to affect African American, Hispanic,
and Native American Arizonan voters than white voters. As
the district court recognized, minority voters used ballot
collection services more than white voters. Reagan,
2018 WL 2191664, at *31. The disparity is not caused solely
by geography, as the socioeconomic conditions leading
minority voters to depend on ballot collection “exist in both
urban and rural areas.” Id. at *32.
The witnesses with direct experience in collecting ballots,
without exception, testified at trial that racial and ethnic
minority voters were far likelier to vote with the help of ballot
collection services. For example, one individual who worked
in several ballot collection groups testified that “the
overwhelming majority” of voters with whom he worked
were Hispanic or African American. Another stated that the
“vast majority of the ballot pickups” done by the Maricopa
DNC V. REAGAN 117
County Democratic Party are in “[m]ajority-minority
districts.” Democratic State Senator Martin Quezada
described requests for ballot collection, testifying that “[t]he
large majority of those requests came from the lower income
and the neighborhoods that were a larger percentage Latino
than others.”
No one had a clear statistical analysis of the disparity.
Nor could anyone, as the state would be the only entity in a
position to collect such evidence, and it has not done so.
However, one ballot collector testified as to what she termed
a “case study” showing the extent of the disparity. In 2010,
she and her fellow organizers collected “somewhere south of
50 ballots” in one particular district. The area was
redistricted before the next election to add a heavily Hispanic
neighborhood, Sunnyslope, and in 2012, the organization
“pulled in hundreds of ballots, vast majority from that
Sunnyslope area.”
Not only is there no evidence in the record of any
significant reliance on ballot collection by white voters, but
the evidence is also replete with evidence explaining why a
disparity is natural. For example, in rural Somerton and San
Luis, both of which are over 95% Hispanic, voters lack home
mail service and are unlikely to have access to reliable
transportation. Id. at *32. In urban areas, too, Hispanic
voters are less likely to have access to mail services and, due
to mail theft, less likely to trust mail-in voting. Id.As the district court rightfully noted, the “problems are
particularly acute in Arizona’s Native American
communities.” Id. Indeed, uncontroverted expert testimony
showed that “the majority of Native Americans in non-
metropolitan Arizona do not have home mail delivery” and
118 DNC V. REAGAN
that non-Hispanic white voters are 350% more likely to have
home mail service than Native American voters. Id. In fact,
only 18% of Native Americans outside of Pima and Maricopa
Counties have home mail service—in contrast to 86% of non-
Hispanic whites. And residents of sovereign nations often
must travel 45 minutes to 2 hours just to get to a mailbox. In
the district court’s words, “for many Native Americans living
in rural locations, especially on reservations, voting is an
activity that requires the active assistance of friends and
neighbors.” Id.In contrast, none of the evidence discussed by the district
court suggested that there was no disparate burden or that any
such disparity was minor. In short, the district court
summarized the overwhelming evidence showing a disparate
burden and then concluded that because it couldn’t pin down
the difference with exactitude, it could not find for DNC.
The district court also suggested that it could not find for
DNC because too few voters rely on ballot collection for a
restriction on ballot collection to matter. Id. at *33–34. To
the degree that this finding matters, it is a consideration under
the Anderson/Burdick analysis, not under step one of the
VRA analysis. Moreover, the district court’s analysis ignores
that the VRA exists to protect minority groups—those groups
least likely to have their voices heard. Thus, the precise
number of affected voters is not particularly helpful.
Because it misstated the legal requirements for
establishing a disparity, the district court clearly erred in
concluding that DNC failed to meet their burden. I would
hold that H.B. 2023 imposes a disparate burden on members
of protected classes.
DNC V. REAGAN 119
B
As detailed earlier, within my application of the § 2
results test to the OOP policy, the Senate Factors demonstrate
the existence of social and historical conditions of
discrimination in Arizona. Those determinations have equal
force here, and I will not belabor the point by repeating my
analysis here. Instead, I will focus on the ways in which H.B.
2023 is directly connected to those conditions of
discrimination.
For example, one of the Senate Factors considers the
state’s history of racial discrimination. Gingles, 478 U.S. at36–37. Not only does Arizona have a history of official
discrimination, as I have discussed, but the history of H.B.
2023—passed after one provision was rejected under § 5 of
the VRA and after the people of Arizona demonstrated
concern with another—powerfully links the statute to that
history. Similarly, as to racially polarized voting patterns, as
the district court noted, one of the most vocal proponents for
criminalizing ballot collection, Senator Shooter, did so in part
because he was facing a close election in which Hispanic
voters were highly unlikely to vote for him.
Perhaps most significantly, there is direct evidence of
racial appeals being made in the context of this very issue.
Gingles, 478 U.S. at 36–37. In the LaFaro video, a Hispanic
get-out-the-vote volunteer gives no indication that he is
violating election law but is nonetheless described as a “thug”
likely to physically harm a white political figure. Reagan,
2018 WL 2191664, at *38–39. That video figured
“prominently” in public debates about voter fraud and ballot
collection, even though it showed no illegal activity. Id. at
*39. The Senate Factors clarify that even “subtle” racial
120 DNC V. REAGAN
appeals are significant under the § 2 analysis, but the subtext
of the LaFaro video does not demand decoding. Gingles,
478 U.S. at 37 (1986) (quoting S. Rep. No. 97-417, at 28–29).
Additionally, the legislative record demonstrates a
“significant lack of responsiveness on the part of elected
officials to the particularized needs of the members of the
minority group[s].” Gingles, 478 U.S. at 37 (1986) (quoting
S. Rep. No. 97-417, at 28–29). Legislators were apprised of
concerns that H.B. 2023 would place an especial burden on
minority voters. Their response? In the words of the bill’s
sponsor: “not my problem.” And in those of another state
senator supporting the measure, “I don’t know why we have
to spoon-fe[e]d and baby them over their vote.”
H.B. 2023 “interacts with social and historical conditions
to cause an inequality in the opportunities enjoyed by
[minority] and white voters to elect their preferred
representatives.” Gingles, 478 U.S. at 47. DNC has
conclusively met its burden of showing that H.B. 2023 limits
African American, Hispanic, and Native American Arizonan
voters’ ability to fully participate in the political process and
to elect representatives of their choice.
VII
Finally, H.B. 2023 cannot be reconciled with the First
Amendment, which applies to the states under the Fourteenth
Amendment and which guarantees that the right to vote will
not be unreasonably burdened. Burdick, 504 U.S. at 434.
DNC V. REAGAN 121
A
The burden is identified by looking to those affected by
the challenged provision. Crawford, 553 U.S. at 198 (“The
burdens that are relevant to the issue before us are those
imposed on persons who are eligible to vote but do not
possess a current photo identification that complies with the
requirements.”). Here, then, the relevant burden is that faced
by individuals who vote with the assistance of others who are
not family members, household members, or caregivers.
“[C]ourts may consider not only a given law’s impact on
the electorate in general, but also its impact on subgroups, for
whom the burden, when considered in context, may be more
severe.” Pub. Integrity All., 836 F.3d at 1024 n.2. And,
indeed, the Court recognized this principle in Crawford by
noting that “a somewhat heavier burden may be placed on a
limited number of persons.” 553 U.S. at 199. A
determination of the severity of that burden takes into account
socioeconomic situations. Id. (considering “persons who
because of economic or other personal limitations may find
it difficult either to secure a copy of their birth certificate or
to assemble the other required documentation to obtain a
state-issued identification”).
Here, there is a heavy burden on, at minimum, Native
Americans living in rural Arizona, 82% of whom lack home
mail service. Reagan, 2018 WL 2191664, at *32. Many of
these individuals without home mail access may have serious
difficulties getting to the post office due to distance,
socioeconomic conditions, and lack of reliable transportation.
Id. Additionally, as the district court recognized, the State’s
definition of a family relationship, codified in H.B. 2023,
122 DNC V. REAGAN
does not track with family relationships in Indian Country.
Id. at *33.
The district court erred by failing to consider a significant
body of evidence demonstrating the burdens faced by voters.
The district court wrote that it “ha[d] insufficient evidence
from which to measure the burdens on discrete subsets of
voters” because it could not determine a precise number of
voters that had relied on ballot collection in the past or predict
a likely number in the future. Id. at *14. Its reliance on
Crawford for this assertion is legally erroneous. In Crawford,
the Court did not set forth a rigorous evidentiary standard
requiring the production of quantifiable evidence; instead, the
Court simply said that DNC did not produce anything
sufficiently reliable to demonstrate who would be burdened
or to what degree. 553 U.S. at 200–02.
DNC presented a much better case than the plaintiffs in
Crawford. First, here, unlike in Crawford, the district court
did not reject the plaintiff’s evidence as “utterly incredible
and unreliable.” Crawford, 553 U.S. at 200. Second, also
distinguishable from Crawford, here, there is evidence that
some will be unable to vote under H.B. 2023. For example,
an individual who collected ballots for the Maricopa County
Democratic Party testified that even though the organization
only collected ballots for voters with “no other option,” she
nonetheless witnessed its collection of 1,200 to 1,500 ballots.
Here, there was no evidentiary failure.
That said, even if the district court properly classified the
burden as minimal at step one of the Anderson/Burdick
analysis, H.B. 2023 nonetheless fails at step two.
DNC V. REAGAN 123
B
H.B. 2023 was and is not supported by the “adequate
justification” of “reduc[ing] opportunities for early ballot loss
or destruction,” Reagan, 2018 WL 2191664, at *40, or of
“maintain[ing] public confidence in election integrity,” id. at
*18. Rather, the legislative history uncontrovertedly
indicates that the best justification offered by the legislators
voting for the measure was a generic concern regarding voter
fraud—a solution in search of a problem. Even after the bill
was passed and a trial was held, the trial court could find “no
direct evidence that the type of ballot collection fraud the law
is intended to prevent or deter has occurred.” Id.10 H.B.
2023’s foundation is not only shaky, it’s illusory.
Even if the district court had been correct to classify the
burden imposed by H.B. 2023 as minimal, the law does not
withstand scrutiny under the First Amendment. “However
slight [a] burden may appear, . . . it must be justified by
relevant and legitimate state interests ‘sufficiently weighty to
justify the limitation.” Crawford, 553 U.S. at 191 (quoting
Norman v. Reed, 502 U.S. 279, 288–89 (1992)).
“‘[E]venhanded restrictions that protect the integrity and
reliability of the electoral process itself are not invidious and
satisfy the standard.” Crawford, 553 U.S. 181, 189–90
(quoting Anderson, 460 U.S. at 788). Here, no legitimate
interest justifies H.B. 2023.
Crawford is not a blank check for legislators seeking to
restrict voting rights with baseless cries of “voter fraud.” In
10
Nor was there any suggestion that legislators had reason to believe
that public faith in the system had been shaken, as the district court notes.
Reagan, 2018 WL 2191664, at *18.
124 DNC V. REAGAN
Crawford, the Court held that the state’s interest in deterring
voter fraud was legitimate despite the record’s absence of
“evidence of any [in-person] fraud actually occurring . . . at
any time in its history,” but the case is distinguishable for at
least two reasons. Id. at 194. First, the voter I.D. restriction
considered in Crawford was tied to “the State’s interest in
counting only the votes of eligible voters,” particularly given
the extreme disorganization of Indiana’s voter rolls. Id. at
196. On the other hand, the nature of the relationship
between the voter and the person submitting a ballot has no
similar logical connection to that interest. The same
safeguards—e.g., “tamper evident envelopes and a rigorous
voter signature verification procedure”—are in place for
voters who give their ballots to their sister as for those who
participate in a get-out-the-vote effort. Reagan, 2018 WL
2191664, at *19.
Second, the Court in Crawford was untroubled by its
determination that the legislature was motivated by
partisanship because it determined that the legislature was
also motivated by legitimate concerns. Crawford, 553 U.S.
at 204 (“[I]f a nondiscriminatory law is supported by valid
neutral justifications, those justifications should not be
disregarded simply because partisan interests may have
provided one motivation for the votes of individual
legislators.”). Here, however, the legislature was motivated
by discriminatory intent, as I have discussed.
Moreover, even in the absence of discriminatory intent,
given the precision of H.B. 2023 toward Democratic get-out-
the-vote operations, “partisan considerations” did not simply
“play[] a significant role in the decision to enact [the law]”
but rather “provided the only justification for [the restriction
on ballot collection].” Id. at 203. In Crawford, the plurality
DNC V. REAGAN 125
“assume[d]” that such a law would be held unconstitutional.
Id. The Court’s assumption was based in Harper v. Virginia
State Board of Elections, 383 U.S. 663, in which the Court
struck a poll tax requirement. Harper is instructive. There,
the Court wrote that “the interest of the State, when it comes
to voting, is limited to the power to fix qualifications.” Id. at
668. Just as “[w]ealth, like race, creed, or color, is not
germane to one’s ability to participate intelligently in the
electoral process[,]” neither is political affiliation. Id. at 668.
VIII
As I said in the previous appeal in this case, voting should
be easy in America. It is not in Arizona, and the burden falls
most heavily on minority voters. In my view, the district
court should have granted an injunction as to both of DNC’s
challenges. Arizona’s practice of discarding OOP votes
violates § 2 of the VRA and the First and Fourteenth
Amendments. And H.B. 2023 cannot withstand scrutiny
under § 2 and the First, Fourteenth, and Fifteenth
Amendments.
I respectfully dissent.