Dnc v. Katie Hobbs ( 2020 )

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-
DEMOCRATIC PARTY, DLR
Plaintiffs-Appellants,
v. OPINION
KATIE HOBBS, 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.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
2 DNC V. HOBBS
Argued and Submitted En Banc March 27, 2019
San Francisco, California
Filed January 27, 2020
Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain, William A. Fletcher, Marsha S. Berzon*,
Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee,
Consuelo M. Callahan, Mary H. Murguia, Paul J. Watford,
and John B. Owens, Circuit Judges.
Opinion by Judge W. Fletcher;
Concurrence by Judge Watford;
Dissent by Judge O’Scannlain;
Dissent by Judge Bybee
*
Judge Berzon was drawn to replace Judge Graber. Judge Berzon has
read the briefs, reviewed the record, and watched the recording of oral
argument held on March 27, 2019.
DNC V. HOBBS 3
SUMMARY**
Civil Rights
The en banc court reversed the district court’s judgment
following a bench trial in favor of defendants, the Arizona
Secretary of State and Attorney General in their official
capacities, in an action brought by the Democratic National
Committee and others challenging, first, Arizona’s policy of
wholly discarding, rather than counting or partially counting,
ballots cast in the wrong precinct; and, second, House Bill
2023, a 2016 statute criminalizing the collection and delivery
of another person’s ballot.
Plaintiffs asserted that the out-of-precinct policy (OOP)
and House Bill (H.B.) 2023 violated Section 2 of the Voting
Rights Act of 1965 as amended because they adversely and
disparately affected Arizona’s American Indian, Hispanic,
and African American citizens. Plaintiffs also asserted that
H.B. 2023 violated Section 2 of the Voting Rights Act and
the Fifteenth Amendment to the United States Constitution
because it was enacted with discriminatory intent. Finally,
plaintiffs asserted that the OOP policy and H.B. 2023 violated
the First and Fourteenth Amendments because they unduly
burden minorities’ right to vote.
The en banc court held that Arizona’s policy of wholly
discarding, rather than counting or partially counting, OOP
ballots, and H.B. 2023’s criminalization of the collection of
another person’s ballot, have a discriminatory impact on
**
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. HOBBS
American Indian, Hispanic, and African American voters in
Arizona, in violation of the “results test” of Section 2 of the
Voting Rights Act. Specifically, the en banc court
determined that plaintiffs had shown that Arizona’s OOP
policy and H.B. 2023 imposed a significant disparate burden
on its American Indian, Hispanic, and African American
citizens, resulting in the “denial or abridgement of the right
of its citizens to vote on account of race or color.” 52 U.S.C.
§ 10301(a). Second, plaintiffs had shown that, under the
“totality of circumstances,” the discriminatory burden
imposed by the OOP policy and H.B. 2023 was in part caused
by or linked to “social and historical conditions” that have or
currently produce “an inequality in the opportunities enjoyed
by [minority] and white voters to elect their preferred
representatives” and to participate in the political process.
Thornburg v. Gingles, 478 U.S. 30, 47 (1986); 52 U.S.C.
§ 10301(b).
The en banc court held that H.B. 2023’s criminalization
of the collection of another person’s ballot was enacted with
discriminatory intent, in violation of the “intent test” of
Section 2 of the Voting Rights Act and of the Fifteenth
Amendment. The en banc court held that the totality of the
circumstances—Arizona’s long history of race-based voting
discrimination; the Arizona legislature’s unsuccessful efforts
to enact less restrictive versions of the same law when
preclearance was a threat; the false, race-based claims of
ballot collection fraud used to convince Arizona legislators to
pass H.B. 2023; the substantial increase in American Indian
and Hispanic voting attributable to ballot collection that was
targeted by H.B. 2023; and the degree of racially polarized
voting in Arizona—cumulatively and unmistakably revealed
that racial discrimination was a motivating factor in enacting
H.B. 2023. The en banc court further held that Arizona had
DNC V. HOBBS 5
not carried its burden of showing that H.B. 2023 would have
been enacted without the motivating factor of racial
discrimination. The panel declined to reach DNC’s First and
Fourteenth Amendment claims.
Concurring, Judge Watford joined the court’s opinion to
the extent it invalidated Arizona’s out-of-precinct policy and
H.B. 2023 under the results test. Judge Watford did not join
the opinion’s discussion of the intent test.
Dissenting, Judge O’Scannlain, joined by Judges Clifton,
Bybee and Callahan, stated that the majority drew factual
inferences that the evidence could not support and misread
precedent along the way. In so doing, the majority
impermissibly struck down Arizona’s duly enacted policies
designed to enforce its precinct-based election system and to
regulate third-party collection of early ballots.
Dissenting, Judge Bybee, joined by Judges O’Scannlain,
Clifton and Callahan, wrote separately to state that in
considering the totality of the circumstances, which took into
account long-held, widely adopted measures, Arizona’s time,
place, and manner rules were well within our American
democratic-republican tradition.
6 DNC V. HOBBS
COUNSEL
Bruce V. Spiva (argued), Marc E. Elias, Elisabeth C. Frost,
Amanda R. Callais, and Alexander G. Tischenko, Perkins
Coie LLP, Washington, D.C.; Daniel C. Barr and Sarah R.
Gonski, Perkins Coie LLP, Phoenix, Arizona; Joshua L. Kaul,
Perkins Coie LLP, Madison, Wisconsin; for Plaintiffs-
Appellants.
Andrew G. Pappas (argued), Joseph E. La Rue, Karen J.
Hartman-Tellez, and Kara M. Karlson, Assistant Attorneys
General; Dominic E. Draye, Solicitor General; Mark
Brnovich, Attorney General; 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.
John M. Gore (argued), Principal Deputy Assistant Attorney
General; Thomas E. Chandler and Erin H. Flynn, Attorneys;
Gregory B. Friel, Deputy Assistant Attorney General; Eric S.
Dreiband, Assistant Attorney General; Department of Justice,
CRD–Appellate Section, Washington, D.C.; for Amicus
Curiae United States.
Kathleen E. Brody, ACLU Foundation of Arizona, Phoenix,
Arizona; Dale Ho, American Civil Liberties Union
Foundation, New York, New York; Davin Rosborough and
Ceridwen Chery, American Civil Liberties Union Foundation,
Washington, D.C.; for Amici Curiae American Civil Liberties
Union & American Civil Liberties Union of Arizona.
DNC V. HOBBS 7
OPINION
W. FLETCHER, Circuit Judge:
The right to vote is the foundation of our democracy.
Chief Justice Warren wrote in his autobiography that the
precursor to one person, one vote, Baker v. Carr, 369 U.S.
186 (1962), was the most important case decided during his
tenure as Chief Justice—a tenure that included Brown v.
Board of Education, 347 U.S. 483 (1954). Earl Warren, The
Memoirs of Earl Warren 306 (1977). Chief Justice Warren
wrote in Reynolds v. Sims, 377 U.S. 533, 555 (1964): “The
right to vote freely for the candidate of one’s choice is of the
essence of a democratic society, and any restrictions on that
right strike at the heart of representative government.”
Justice Black wrote in Wesberry v. Sanders, 376 U.S. 1, 17
(1964): “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. Other rights,
even the most basic, are illusory if the right to vote is
undermined.”
For over a century, Arizona has repeatedly targeted its
American Indian, Hispanic, and African American citizens,
limiting or eliminating their ability to vote and to participate
in the political process. In 2016, the Democratic National
Committee and other Plaintiffs-Appellants (collectively,
“DNC” or “Plaintiffs”) sued Arizona’s Secretary of State and
Attorney General in their official capacities (collectively,
“Arizona”) in federal district court.
DNC challenged, first, Arizona’s policy of wholly
discarding, rather than counting or partially counting, ballots
cast in the wrong precinct (“out-of-precinct” or “OOP”
8 DNC V. HOBBS
policy); and, second, House Bill 2023 (“H.B. 2023”), a 2016
statute criminalizing the collection and delivery of another
person’s ballot. DNC contends that the OOP policy and H.B.
2023 violate Section 2 of the Voting Rights Act of 1965 as
amended (“VRA”) because they adversely and disparately
affect Arizona’s American Indian, Hispanic, and African
American citizens. DNC also contends that H.B. 2023
violates Section 2 of the VRA and the Fifteenth Amendment
to the United States Constitution because it was enacted with
discriminatory intent. Finally, DNC contends that the OOP
policy and H.B. 2023 violate the First and Fourteenth
Amendments because they unduly burden minorities’ right to
vote.
Following a ten-day bench trial, the district court found in
favor of Arizona on all claims. Democratic Nat’l Comm. v.
Reagan, 329 F. Supp. 3d 824 (D. Ariz. 2018) (Reagan). DNC
appealed, and a divided three-judge panel of our court
affirmed. Democratic Nat’l Comm. v. Reagan, 904 F.3d 686
(9th Cir. 2018) (DNC). A majority of non-recused active
judges voted to rehear this case en banc, and we vacated the
decision of the three-judge panel. Democratic Nat’l Comm.
v. Reagan, 911 F.3d 942 (9th Cir. 2019).
We review the district court’s conclusions of law de novo
and its findings of fact for clear error. Gonzalez v. Arizona,
677 F.3d 383, 406 (9th Cir. 2012) (en banc). We may
“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.” Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (internal
quotation marks omitted); see Smith v. Salt River Project
Agric. Improvement & Power Dist., 109 F.3d 586, 591 (9th
Cir. 1997) (Salt River). We review for clear error the district
DNC V. HOBBS 9
court’s overall finding of vote dilution or vote denial in
violation of the VRA. Gingles, 478 U.S. at 78; Salt River,
109 F.3d at 591.
Reviewing the full record, we conclude that the district
court clearly erred. We reverse the decision of the district
court. We hold that Arizona’s policy of wholly discarding,
rather than counting or partially counting, out-of-precinct
ballots, and H.B. 2023’s criminalization of the collection of
another person’s ballot, have a discriminatory impact on
American Indian, Hispanic, and African American voters in
Arizona, in violation of the “results test” of Section 2 of the
VRA. We hold, further, that H.B. 2023’s criminalization of
the collection of another person’s ballot was enacted with
discriminatory intent, in violation of the “intent test” of
Section 2 of the VRA and of the Fifteenth Amendment. We
do not reach DNC’s First and Fourteenth Amendment claims.
I. Out-of-Precinct Policy and H.B. 2023
DNC challenges (1) Arizona’s policy of wholly
discarding, rather than counting or partially counting, ballots
cast out-of-precinct (“OOP”), and (2) H.B. 2023, a statute
that, subject to certain exceptions, criminalizes the collection
of another person’s early ballot. See Ariz. Rev. Stat. §§ 16-
122, -135, -584; H.B. 2023, 52nd Leg., 2d Reg. Sess. (Ariz.
2016), codified as Ariz. Rev. Stat. § 16-1005(H), (I).
Arizona offers two methods of voting: (1) in-person
voting at a precinct or vote center either on election day or
during an early-vote period, or (2) “early voting” whereby the
voter receives the ballot via mail and either mails back the
voted ballot or delivers the ballot to a designated drop-off
10 DNC V. HOBBS
location. Arizona’s OOP policy affects in-person voting.
H.B. 2023 affects early voting.
We describe in turn Arizona’s OOP policy and H.B. 2023.
A. Out-of-Precinct Policy
1. Policy of Entirely Discarding OOP Ballots
Arizona law permits each county to choose a vote-center
or a precinct-based system for in-person voting. Reagan,
329 F. Supp. 3d at 840. In counties using the vote-center
system, registered voters may vote at any polling location in
the county. Id. In counties using the precinct-based system,
registered voters may vote only at the designated polling
place in their precinct. Approximately 90 percent of
Arizona’s population lives in counties using the precinct-
based system.
In precinct-based counties, if a voter arrives at a polling
place and does not appear on the voter rolls for that precinct,
that voter may cast a provisional ballot. Id.; Ariz. Rev. Stat.
§§ 16-122, -135, -584. After election day, county election
officials in close elections review all provisional ballots to
determine the voter’s identity and address. If, after reviewing
a provisional ballot, election officials determine that the voter
voted out of precinct, the county discards the OOP ballot in
its entirety. In some instances, all of the votes cast by the
OOP voter will have been cast for candidates and
propositions for which the voter was legally eligible to vote.
In other instances, most of the votes cast by the OOP voter
will have been cast properly, in the sense that the voter was
eligible to vote on those races, but one or more votes for local
candidates or propositions will have been cast improperly.
DNC V. HOBBS 11
In both instances, the county discards the OOP ballot in
its entirety. Reagan, 329 F. Supp. 3d at 840. That is, the
county discards not only the votes of an OOP voter for the
few local candidates and propositions for which the OOP
voter may have been ineligible to vote. The county also
discards the votes for races for which the OOP voter was
eligible to vote, including U.S. President, U.S. Senator, and
(almost always) Member of the U.S. House of
Representatives; all statewide officers, including Governor,
and statewide propositions; (usually) all countywide officers
and propositions; and (often) local candidates and
propositions.
2. Comparison with Other States
The district court found that Arizona “consistently is at or
near the top of the list of states that collect and reject the
largest number of provisional ballots each election.” Id.
at 856 (emphasis added). The district court’s finding
understates the matter. Arizona is consistently at the very top
of the list by a large margin.
Dr. Jonathan Rodden, Professor of Political Science and
Senior Fellow at the Hoover Institution at Stanford
University, provided expert reports to the district court. The
court gave “great weight” to Dr. Rodden’s analysis of the
“rates and causes of OOP voting” in Arizona. Id. at 835.
Dr. Rodden reported: “Since 2012, Arizona has clearly
become the national leader in both provisional ballots cast
and especially in provisional ballots rejected among in-person
voters.” Jonathan Rodden, Expert Report (Rodden) at 25.
Dr. Rodden reported that, from 2006 to 2010, between
9 to 13 percent of all in-person ballots cast in Arizona were
12 DNC V. HOBBS
provisional ballots. Id. at 24. In the 2012 general election,
more than 22 percent of all in-person ballots cast were
provisional ballots. Id. In Maricopa County, Arizona’s most
populous county, close to one in three in-person ballots cast
in 2012 were provisional ballots. Id. at 27–28. In the 2014
midterm election, over 18 percent of in-person ballots cast in
the State were provisional ballots. Id. at 25. These numbers
place Arizona at the very top of the list of States in collection
of provisional ballots.
Arizona also rejects a higher percentage of provisional
ballots than any other State. The district court found:
In 2012 alone “[m]ore 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. No other state
rejected a larger share of its in-person ballots
in 2012.”
Reagan, 329 F. Supp. 3d at 856 (alterations in original)
(quoting Rodden at 24–25).
One of the most frequent reasons for rejecting provisional
ballots in Arizona is that they are cast out-of-precinct. Id.;
see also Rodden at 26–29. From 2008 to 2016, Arizona
discarded a total of 38,335 OOP ballots cast by registered
voters—29,834 ballots during presidential general elections,
and 8,501 ballots during midterm general elections. Reagan,
329 F. Supp. 3d at 856.
As the figure below shows, Arizona is an extreme outlier
in rejecting OOP ballots:
DNC V. HOBBS 13
Rodden at 26. The percentage of rejected OOP votes in
Arizona is eleven times that in Washington, the State with the
second-highest percentage.
The percentage of OOP ballots in Arizona, compared to
all ballots cast, has declined in recent years. But the
percentage of in-person ballots cast, compared to all ballots
cast, has declined even more. See Jonathan Rodden, Rebuttal
Report (Rodden Rebuttal) at 10. As a result, as a percentage
14 DNC V. HOBBS
of in-person ballots between 2008 and 2014, the percentage
of OOP ballots has increased.
3. Reasons for OOP Ballots
Three key factors leading to OOP ballots are frequent
changes in polling locations; confusing placement of polling
locations; and high rates of residential mobility. These
factors disproportionately affect minority voters. Dr. Rodden
summarized:
Voters must invest significant effort in order
to negotiate a dizzying array of precinct and
polling place schemes that change from one
month to the next. Further, Arizona’s
population is highly mobile and residential
locations are fluid, especially for minorities,
young people, and poor voters, which further
contributes to confusion around voting
locations.
Rodden at 2; see also Reagan, 329 F. Supp. 3d at 857–58
(discussing these reasons).
a. Frequent Changes in Polling Locations
Arizona election officials change voters’ assigned polling
places with unusual frequency. Maricopa County, which
includes Phoenix, is a striking example. The district court
found that between 2006 and 2008, “at least 43 percent of
polling locations” changed. Reagan, 329 F. Supp. 3d at 858.
Between 2010 and 2012, approximately 40 percent of polling
place locations were changed again. Id. These changes
continued in 2016, “when Maricopa County experimented
DNC V. HOBBS 15
with 60 vote centers for the presidential preference election
[in March], then reverted to a precinct-based system with
122 polling locations for the May special election, and then
implemented over 700 assigned polling places [for] the
August primary and November general elections.” Id. The
OOP voting rate was 40 percent higher for voters whose
polling places were changed. Id. As Chief Judge Thomas put
it, “the paths to polling places in the Phoenix area [are] much
like the changing stairways at Hogwarts, constantly moving
and sending everyone to the wrong place.” DNC, 904 F.3d at
732 (Thomas, C.J., dissenting).
White voters in Maricopa County are more likely than
minority voters to have continuity in their polling place
location. Rodden at 60–61. Dr. Rodden wrote that between
the February and November elections in 2012, “the rates at
which African Americans and Hispanics experienced stability
in their polling places were each about 30 percent lower than
the rate for whites.” Id.
b. Confusing Placement of Polling Locations
Some polling places are located so counterintuitively that
voters easily make mistakes. In Maricopa and Pima
Counties, many polling places are located at or near the edge
of precincts. Id. at 50. An example is the polling place for
precinct 222 in Maricopa County during the 2012 election.
Dr. Rodden wrote:
[A] group of 44 voters who were officially
registered to vote in precinct 222, . . . showed
up on Election Day at the Desert Star School,
the polling location for precinct 173. It is
easy to understand how they might have made
16 DNC V. HOBBS
this mistake. Polling place 173 is the local
elementary school, and the only polling place
in the vicinity. It is within easy walking
distance, and is the polling place for most of
the neighbors and other parents at the school,
yet due to a bizarre placement of the [polling
place at the] Southern border of precinct 222,
these voters were required to travel
15 minutes by car (according to [G]oogle
maps) to vote in polling location 222, passing
four other polling places along the way.
Id. at 47–48.
 DNC V. HOBBS 17
This map illustrates Dr. Rodden’s point:
Id. at 47.
In 2012, approximately 25 percent of OOP voters lived
closer to the polling place where they cast their OOP ballot
than to their assigned polling place. Id. at 53. Voters who
live more than 1.4 miles from their assigned polling place are
30 percent more likely to vote OOP than voters who live
within 0.4 miles of their assigned polling place. Id. at 54.
American Indian and Hispanic voters live farther from their
assigned polling places than white voters. Id. at 60.
18 DNC V. HOBBS
American Indian voters are particularly disadvantaged. The
district court found: “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.” Reagan, 329 F. Supp. 3d at 873; Rodden
Second at 52–53.
c. Renters and Residential Mobility
High percentages of renters and high rates of residential
mobility correlate with high rates of OOP voting. Reagan,
329 F. Supp. 3d at 857. The district court found that rates of
OOP voting are “higher in neighborhoods where renters make
up a larger share of householders.” Id. Between 2000 and
2010, almost 70 percent of Arizonans changed their
residential address, the second highest rate of any State.
Reagan, 329 F. Supp. 3d at 857; Rodden at 11–12. The
district court found that “[t]he vast majority of Arizonans
who moved in the last year moved to another address within
their current city of residence.” Reagan, 329 F. Supp. 3d at
857.
The need to locate the proper polling place after
moving—particularly after moving a short distance in an
urban area—leads to a high percentage of OOP ballots.
Dr. Rodden wrote:
An individual who faces a rent increase in one
apartment complex and moves to another less
than a mile away might not be aware that she
has moved into an entirely new precinct—
indeed, in many cases . . . she may still live
closest to her old precinct, but may now be
DNC V. HOBBS 19
required to travel further in order to vote in
her new assigned precinct. Among groups for
whom residential mobility is common,
requirements of in-precinct-voting—as well
as the requirement that they update their
registration with the state every time that they
move even a short distance within a
county—can make it substantially more
burdensome to participate in elections.
Rodden at 11.
The district court found that minority voters in Arizona
have “disproportionately higher rates of residential mobility.”
Reagan, 329 F. Supp. 3d at 872. The court found, “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.
4. Disparate Impact on Minority Voters
The district court found that Arizona’s policy of wholly
discarding OOP ballots disproportionately affects minority
voters. Reagan, 329 F. Supp. 3d at 871. During the general
election in 2012 in Pima County, compared to white voters,
the rate of OOP ballots was 123 percent higher for Hispanic
voters, 47 percent higher for American Indian voters, and
37 percent higher for African American voters. Rodden
at 43. During the 2014 and 2016 general elections in Apache,
Navajo, and Coconino Counties, the vast majority of OOP
ballots were in areas that are almost entirely American
Indian. Rodden Rebuttal at 53–54, 58; Jonathan Rodden,
Second Expert Report (Rodden Second) at 22. In all
20 DNC V. HOBBS
likelihood, the reported numbers underestimate the degree of
disparity. Dr. Rodden wrote, “[A]lthough the racial
disparities described . . . are substantial, they should be
treated as a conservative lower bound on the true differences
in rates of out-of-precinct voting across groups.” Rodden
Second at 15 (emphasis in original). The district court found,
“Dr. Rodden credibly explained that the measurement error
for Hispanic probabilities leads only to the under-estimation
of racial disparities.” Reagan, 329 F. Supp. 3d at 838.
Racial disparities in OOP ballots in 2016 “remained just
as pronounced” as in 2012 and 2014. Rodden Second at 3.
For example, the rates of OOP ballots in Maricopa County
“were twice as high for Hispanics, 86 percent higher for
African Americans, and 73 percent higher for Native
Americans than for their non-minority counterparts.”
Reagan, 329 F. Supp. 3d at 871–72; Rodden Second at 29.
“In Pima County, rates of OOP voting were 150 percent
higher for Hispanics, 80 percent higher for African
Americans, and 74 percent higher for Native Americans than
for non-minorities.” Reagan, 329 F. Supp. 3d at 872. “[I]n
Pima County the overall rate of OOP voting was higher, and
the racial disparities larger, in 2016 than in 2014.” Id.;
Rodden Second at 33.
The district court found:
Among all counties that reported OOP ballots
in the 2016 general election, a little over 1 in
every 100 Hispanic voters, 1 in every 100
African-American voters, and 1 in every 100
Native American voters cast an OOP ballot.
For non-minority voters, the figure was
around 1 in every 200 voters.
DNC V. HOBBS 21
Reagan, 329 F. Supp. 3d at 872. That is, in the 2016 general
election, as in the two previous elections, American Indians,
Hispanics, and African Americans voted OOP at twice the
rate of whites.
B. H.B. 2023
1. Early Voting and Ballot Collection
Arizona has permitted early voting for over 25 years. Id.
at 839. “In 2007, Arizona implemented permanent no-excuse
early voting by mail, known as the Permanent Early Voter
List (“PEVL”).” Id. Under PEVL, Arizonans may either
(a) request an early vote-by-mail ballot on an election-by-
election basis, or (b) request that they be placed on the
Permanent Early Voter List. See id.; Ariz. Rev. Stat. §§ 16-
542, -544. Some counties permit voters to drop their early
ballots in special drop boxes. All counties permit the return
of early ballots by mail, or in person at a polling place, vote
center, or authorized election official’s office. Early voting
is by far “the most popular method of voting [in Arizona].”
Reagan, 329 F. Supp. 3d at 839. Approximately 80 percent
of all ballots cast in the 2016 general election were early
ballots. Id. Until the passage of H.B. 2023, Arizona did not
restrict collection and drop-off of voted ballots by third
parties.
The district court heard extensive testimony about the
number of ballots collected and turned in by third parties. Id.
at 845. A Maricopa County Democratic Party organizer
testified that during the course of her work for the party she
personally saw 1,200 to 1,500 early ballots collected and
turned in by third-party volunteers. These were only a
portion of the total ballots collected by her organization. The
22 DNC V. HOBBS
organizer testified that during the 2010 election the Maricopa
County Democratic Party collected hundreds of ballots from
a heavily Hispanic neighborhood in one state legislative
district alone. A representative of Citizens for a Better
Arizona testified that the organization collected
approximately 9,000 early ballots during the 2012 Maricopa
County Sheriff’s election. A member of the Arizona
Democratic Party testified that the party collected “a couple
thousand ballots” in 2014. Id. A community advocate
testified before the Arizona Senate Elections Committee that
in one election he collected 4,000 early ballots. Id. A
Phoenix City Councilmember testified that she and her
volunteers collected about 1,000 early ballots in an election
in which she received a total of 8,000 votes.
2. Minority Voters’ Reliance on Third-Party Ballot
Collection
The district court found “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.” Id. at 870. The court recounted: “Helen
Purcell, who served as the Maricopa County Recorder for
28 years from 1988 to 2016, observed that ballot collection
was disproportionately used by Hispanic voters.” Id.
Individuals who collected ballots in past elections “observed
that minority voters, especially Hispanics, were more
interested in utilizing their services.” Id. One ballot collector
testified about what she termed a “case study” demonstrating
the extent of the disparity. In 2010, she and her fellow
organizers collected “somewhere south of 50 ballots” in one
area. The area was later redistricted before the next election
to add the heavily Hispanic neighborhood of Sunnyslope. In
DNC V. HOBBS 23
2012, the organization “pulled in hundreds of ballots, [with
the] vast majority from that Sunnyslope area.”
The district court found that, in contrast, the Republican
Party has “not significantly engaged in ballot collection as a
GOTV [Get Out the Vote] strategy.” Id. The base of the
Republican Party in Arizona is white. Id. Individuals who
engaged in ballot collection in past elections observed that
voters in predominately white areas “were not as interested in
ballot collection services.” Id.
Minority voters rely on third-party ballot collection for
many reasons. Joseph Larios, a community advocate who has
collected ballots in past elections, testified that “returning
early mail ballots presents special challenges for communities
that lack easy access to outgoing mail services; the elderly,
homebound, and disabled voters; socioeconomically
disadvantaged voters who lack reliable transportation; voters
who have trouble finding time to return mail because they
work multiple jobs or lack childcare services; and voters who
are unfamiliar with the voting process and therefore do not
vote without assistance or tend to miss critical deadlines.” Id.
at 847–48 (summarizing Larios’ testimony). These burdens
fall disproportionately on Arizona’s minority voters.
Arizona’s American Indian and Hispanic communities
frequently encounter mail-related problems that make
returning early ballots difficult. In urban areas of heavily
Hispanic counties, many apartment buildings lack outgoing
mail services. Id. at 869. Only 18 percent of American
Indian registered voters have home mail service. Id. White
registered voters have home mail service at a rate over
350 percent higher than their American Indian counterparts.
Id. Basic mail security is an additional problem. Several
24 DNC V. HOBBS
witnesses testified that incoming and outgoing mail often go
missing. Id. The district court found that especially in low-
income communities, frequent mail theft has led to “distrust”
in the mail service. Id.
A lack of transportation compounds the issue.
“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. In San
Luis—a city that is 98 percent Hispanic—a major highway
separates almost 13,000 residents from their nearest post
office. Id. The city has no mass transit, a median income of
$22,000, and many households with no cars. Id. On the
Navajo Reservation, “most people live in remote
communities, many communities have little to no vehicle
access, and there is no home incoming or outgoing mail, only
post office boxes, sometimes shared by multiple families.”
Id. “[R]esidents of sovereign nations often must travel
45 minutes to 2 hours just to get a mailbox.” DNC, 904 F.3d
at 751–52 (Thomas, C.J., dissenting). As a result, voting
“requires the active assistance of friends and neighbors” for
many American Indians. Reagan, 329 F. Supp. 3d at 870
(quoting Rodden Second at 60).
The adverse impact on minority communities is
substantial. Without “access to reliable and secure mail
services” and without reliable transportation, many minority
voters “prefer instead to give their ballots to a volunteer.” Id.
at 869. These communities thus end up relying heavily on
third-party collection of mail-in ballots. Dr. Berman wrote
with respect to Hispanic voters:
DNC V. HOBBS 25
[T]he practice of collecting ballots, used
principally in Hispanic areas, ha[s]
contributed to more votes being cast in those
places tha[n] would have been cast without
the practice. . . . That the practice has
increased minority turnout appears to have
been agreed upon or assumed by both sides of
the issue[.] Democrats and Hispanic leaders
have seen reason to favor it, Republicans have
not.
Berman, Expert Reply Report at 8–9. Similarly, LeNora
Fulton, a member of the Navajo Nation and previous Apache
County Recorder, testified that it was “standard practice” in
Apache County and the Nation to vote by relying on non-
family members with the means to travel. Reagan, 329 F.
Supp. 3d at 870.
3. History of H.B. 2023
Before the passage of H.B. 2023, Arizona already
criminalized fraud involving possession or collection of
another person’s ballot. The district court wrote:
[B]allot tampering, vote buying, or discarding
someone else’s ballot all were illegal prior to
the passage of H.B. 2023. Arizona law has
long provided that any person who knowingly
collects voted or unvoted ballots and does not
turn those ballots in to an elections official is
guilty of a class 5 felony. A.R.S. § 16-1005.
Further, Arizona has long made all of the
following class 5 felonies: “knowingly
mark[ing] a voted or unvoted ballot or ballot
26 DNC V. HOBBS
envelope with the intent to fix an election;”
“receiv[ing] or agree[ing] to receive any
consideration in exchange for a voted or
unvoted ballot;” possessing another’s voted or
unvoted ballot with intent to sell; “knowingly
solicit[ing] the collection of voted or unvoted
ballots by misrepresenting [one’s self] as an
election official or as an official ballot
repository or . . . serv[ing] as a ballot drop off
site, other than those established and staffed
by election officials;” and “knowingly
collect[ing] voted or unvoted ballots and . . .
not turn[ing] those ballots in to an election
official . . . or any . . . entity permitted by law
to transmit post.” A.R.S. §§ 16-1005(a)–(f).
The early voting process also includes a
number of other safeguards, such as tamper
evident envelopes and a rigorous voter
signature verification procedure.
Reagan, 329 F. Supp. 3d at 854 (alterations in original)
(internal record citations omitted).
There is no evidence of any fraud in the long history of
third-party ballot collection in Arizona. Despite the extensive
statutory provisions already criminalizing fraud involving
possession or collection of another person’s ballot, and
despite the lack of evidence of any fraud in connection with
third-party ballot collection, Republican State Senator
Don Shooter introduced a bill in February 2011. S.B. 1412,
50th Leg., 1st Reg. Sess. (introduced) (Ariz. 2011),
http://www.azleg.gov/legtext/50leg/1r/bills/sb1412p.htm.
DNC V. HOBBS 27
Senator Shooter’s bill criminalized non-fraudulent third-
party ballot collection. The district court had no illusions
about Senator Shooter’s motivation. It found:
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 GOTV 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.
Reagan, 329 F. Supp. 3d at 879–80.
The state legislature amended Senator Shooter’s bill
several times, watering it down significantly. As finally
enacted, the bill—included as part of a series of election-
related changes in Senate Bill 1412 (“S.B. 1412”)—restricted
the manner in which unrelated third parties could collect
and turn in more than ten voted ballots. S.B. 1412, 50th Leg.,
1st Reg. Sess. (engrossed), Sec. 3 at D (Ariz. 2011),
https://legiscan.com/AZ/text/SB1412/id/233492/Arizona-
2011-SB1412-Engrossed.html. If a third-party ballot
collector turned in more than ten ballots, the collector was
required to provide photo identification. After each election,
the Secretary of State was required to compile a statewide
public report listing ballot collectors’ information. The bill
did not criminalize any violation of its provisions.
When S.B. 1412 became law, Arizona was still subject to
preclearance under the Voting Rights Act. S.B. 1412
therefore could not go into effect until it was precleared by
the U.S. Department of Justice (“DOJ”) or a three-judge
28 DNC V. HOBBS
federal district court. On May 18, 2011, the Arizona
Attorney General submitted S.B. 1412 to DOJ for
preclearance. Arizona Attorney General Thomas Horne,
Effect of Shelby County on Withdrawn Preclearance
Submissions, (August 29, 2013), https://www.azag.gov/opi
nions/i13-008-r13-013. On June 27, 2011, DOJ precleared all
provisions of S.B. 1412 except the provision regulating third-
party ballot collection. Reagan, 329 F. Supp. 3d at 880.
DOJ sent a letter to Arizona concerning the third-party
ballot collection provision, stating that the information
provided with the preclearance request was “insufficient to
enable [DOJ] to determine that the proposed changes have
neither the purpose nor will have the effect of denying or
abridging the right to vote on account of race, color, or
membership in a language minority group.” Id. at 880–81.
DOJ requested additional information and stated that it “may
object” to the proposed change if no response was received
within sixty days. Id. at 881.
Instead of responding with the requested information, the
Arizona Attorney General withdrew the preclearance request
for the third-party ballot collection provision. Id. The
Attorney General did so for good reason. According to DOJ
records, Arizona’s Elections Director, who had helped draft
the provision, had admitted to DOJ that the provision was
“targeted at voting practices in predominantly Hispanic
areas.”
The state legislature formally repealed the provision after
receiving the letter from DOJ. Withdrawing a preclearance
request was not common practice in Arizona. Out of
773 proposals that Arizona submitted for preclearance over
DNC V. HOBBS 29
almost forty years, the ballot collection provision of S.B.
1412 was one of only six that Arizona withdrew. Id.
Two years later, on June 25, 2013, the United States
Supreme Court decided Shelby County v. Holder, 570 U.S.
529 (2013). The Court declared unconstitutional the formula
in Section 4(b) of the VRA for determining “covered
jurisdictions,” thereby eliminating preclearance under Section
5 for any previously covered jurisdiction, including Arizona.
On June 19, 2013, Arizona’s Governor had signed a new bill,
H.B. 2305, which entirely banned partisan ballot collection
and required non-partisan ballot collectors to complete
an affidavit stating that they had returned the ballot.
Reagan, 329 F. Supp. 3d at 881; H.B. 2305, 51st Leg., 1st
Reg. Sess. (engrossed), at Secs. 3 and 5 (Ariz. 2013),
https://legiscan.com/AZ/text/HB2305/id/864002. Violation
of H.B. 2305 was a criminal misdemeanor.
H.B. 2305 “was passed along nearly straight party lines in
the waning hours of the legislative session.” Reagan, 329
F. Supp. 3d at 881. “Shortly after its enactment, citizen
groups organized a referendum effort[.]” Id. They “collected
more than 140,000 signatures”—significantly more than the
required amount—“to place H.B. 2305 on the ballot for a
straight up-or-down [statewide] vote” in the next election. Id.
Arizona law provided that repeal by referendum prevented
the legislature from enacting future related legislation without
a supermajority vote. Moreover, any such future legislation
could only “further[]”—not undercut—“the purposes” of the
referendum. Ariz. Const. art. IV, pt. 1, § 1(6)(C), (14).
“Rather than face a referendum, Republican legislators . . .
repealed their own legislation along party lines.” Reagan,
329 F. Supp. 3d at 881. The primary sponsor of H.B. 2305,
then-State Senator Michele Reagan (a future Secretary of
30 DNC V. HOBBS
State of Arizona and an original defendant in this action),
“admitted that the legislature’s goal [in repealing H.B. 2305]
was to break the bill into smaller pieces and reintroduce
individual provisions ‘a la carte.’” Id.
During the 2015 and 2016 legislative sessions,
Republican legislators again sought to criminalize ballot
collection by third parties, culminating in 2016 in the passage
of H.B. 2023, the measure challenged in this suit. The district
court found that Republican legislators had two motivations
for passing H.B. 2023. First, Republican legislators were
motivated by the “unfounded and often farfetched allegations
of ballot collection fraud” made by former State Senator
Shooter—who had introduced the bill to limit third-party
ballot collection in 2011. Id. at 880 (finding Shooter’s
allegations “demonstrably false”). Second, Republican
legislators were motivated by a “racially-tinged” video
known as the “LaFaro Video.” Id.
The video gave proponents of H.B. 2023 their best and
only “evidence” of voter fraud. During legislative hearings
on previous bills criminalizing third-party collection, the
district court wrote, “Republican sponsors and proponents
[had] expressed beliefs that ballot collection fraud regularly
was occurring but struggled with the lack of direct evidence
substantiating those beliefs.” Id. at 876. In 2014,
Republicans’ “perceived ‘evidence’ arrived in the form of a
racially charged video created by Maricopa County
Republican Chair A.J. LaFaro . . . and posted on a blog.” Id.
The court summarized:
The LaFaro Video showed surveillance
footage of a man of apparent Hispanic
heritage appearing to deliver early ballots. It
DNC V. HOBBS 31
also contained a narration of “Innuendos of
illegality . . . [and] racially tinged and
inaccurate commentary by . . . LaFaro.”
LaFaro’s commentary included 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. (alterations in original and internal record citations
omitted). A voice-over on the video described “ballot
parties” where people supposedly “gather en mass[e] and give
their un-voted ballots to operatives of organizations so they
can not only collect them, but also vote them illegally.” Id.
at 876–77.
The district court found, “The LaFaro Video did not show
any obviously illegal activity and there is no evidence that the
allegations in the narration were true.” Id. at 877. The video
“merely shows a man of apparent Hispanic heritage dropping
off ballots and not obviously violating any law.” Id. The
video “became quite prominent in the debates over H.B.
2023.” Id. The court wrote:
The LaFaro video also was posted on
Facebook and YouTube, shown at Republican
district meetings, and was incorporated into a
television advertisement—entitled “Do You
Need Evidence Terry?”—for Secretary
Reagan when she ran for Secretary of State.
In the ad, the LaFaro Video plays after a clip
of then-Arizona Attorney General Terry
32 DNC V. HOBBS
Goddard stating he would like to see evidence
that there has been ballot collection fraud.
While the video is playing, Secretary
Reagan’s narration indicates that the LaFaro
Video answers Goddard’s request for
evidence of fraud.
Id. (internal record citations omitted). The court found,
“Although no direct evidence of ballot collection fraud was
presented to the legislature or at trial, 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[.]” Id. at 880.
The district court found that H.B. 2023 is no harsher than
any of the third-party ballot collection bills previously
introduced in the Arizona legislature. The court found:
[A]lthough Plaintiffs argue that the legislature
made H.B. 2023 harsher than previous ballot
collection bills by imposing felony penalties,
they ignore that H.B. 2023 in other respects is
more lenient than its predecessors given its
broad exceptions for family members,
household members, and caregivers.
Id. at 881. In so finding, the district court clearly erred. Both
S.B. 1412 and H.B. 2305 were more lenient than H.B. 2023.
For example, S.B. 1412, which was presented to DOJ for
preclearance, required a third party collecting more than ten
voted ballots to provide photo identification. There were no
other restrictions on third-party ballot collection. There were
DNC V. HOBBS 33
no criminal penalties. By contrast, under H.B. 2023 a third
party may collect a ballot only if the third party is an official
engaged in official duties, or is a family member, household
member, or caregiver of the voter. Ariz. Rev. Stat. § 16-
1005(H), (I); Reagan, 329 F. Supp. 3d at 839–40. A third
party who violates H.B. 2023 commits a class 5 felony.
In 2011, the relatively permissive third-party ballot
collection provision of S.B. 1412 was withdrawn from
Arizona’s preclearance request when DOJ asked for more
information. In 2016, in the wake of Shelby County and
without fear of preclearance scrutiny, Arizona enacted H.B.
2023.
II. Section 2 of the VRA
“Congress enacted the Voting Rights Act of 1965 for the
broad remedial purpose of ‘rid[ding] the country of racial
discrimination in voting.’” Chisom v. Roemer, 501 U.S. 380,
403 (1991) (alteration in original) (quoting South Carolina v.
Katzenbach, 383 U.S. 301, 315 (1966)). “The Act create[d]
stringent new remedies for voting discrimination where it
persists on a pervasive scale, and . . . strengthen[ed] existing
remedies for pockets of voting discrimination elsewhere in
the country.” Katzenbach, 383 U.S. at 308.
When Section 2 of the Voting Rights Act was originally
enacted in 1965, it read:
SEC. 2. No voting qualification or
prerequisite to voting, or standard, practice, or
procedure shall be imposed or applied by any
State or political subdivision to deny or
34 DNC V. HOBBS
abridge the right of any citizen of the United
States to vote on account of race or color.
Chisom, 501 U.S. at 391 (citing 79 Stat. 437). “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.” Id. at 392. 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 it authorizes Congress
to enforce the provision “by appropriate legislation.” U.S.
Const. amend. XV. In City of Mobile v. Bolden, 446 U.S. 55
(1980) (plurality), the Supreme Court held that the “coverage
provided by § 2 was unquestionably coextensive with the
coverage provided by the Fifteenth Amendment; the
provision simply elaborated upon the Fifteenth Amendment.”
Chisom, 501 U.S. at 392. That is, the Court held that proof of
intentional discrimination was necessary to establish a
violation of Section 2. Id. at 393.
Congress responded to Bolden by amending Section 2,
striking out “to deny or abridge” and substituting “in a
manner which results in a denial or abridgement of.” Id.
(quoting amended Section 2; emphasis added by the Court);
see also Gingles, 478 U.S. at 35. “Under the amended
statute, proof of intent [to discriminate] is no longer required
to prove a § 2 violation.” Chisom, 501 U.S. at 394. Rather,
plaintiffs can now prevail under Section 2 either by
demonstrating proof of intent to discriminate or “by
demonstrating that a challenged election practice has resulted
in the denial or abridgment of the right to vote based on color
or race.” Id. That is, a Section 2 violation can “be
DNC V. HOBBS 35
established by proof of discriminatory results alone.”
Chisom, 501 U.S. at 404. The Supreme Court summarized:
“Congress substantially revised § 2 to make clear that a
violation could be proved by showing discriminatory effect
alone and to establish as the relevant legal standard the
‘results test.’” Gingles, 478 U.S. at 35 (emphasis added).
A violation of Section 2 may now be shown under either
the results test or the intent test. Id. at 35, 44. In the sections
that follow, we analyze Plaintiffs’ challenges under these two
tests. First, we analyze Arizona’s OOP policy and H.B. 2023
under the results test. Second, we analyze H.B. 2023 under
the intent test.
A. Results Test: OOP Policy and H.B. 2023
1. The Results Test
Section 2 of the VRA “‘prohibits all forms of voting
discrimination’ that lessen opportunity for minority voters.”
League of Women Voters of N.C. v. North Carolina, 769 F.3d
224, 238 (4th Cir. 2014) (quoting Gingles, 478 U.S. at 45
n.10). As amended in 1982, Section 2 of the VRA provides:
(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).
36 DNC V. HOBBS
(b) A violation of subsection (a) is established
if, based on the totality of circumstances, it is
shown that the political processes leading to
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 (emphases added).
The results test of Section 2 applies in both vote dilution
and vote denial cases. “Vote dilution claims involve
challenges to methods of electing representatives—like
redistricting or at-large districts—as having the effect of
diminishing minorities’ voting strength.” Ohio State
Conference of NAACP v. Husted, 768 F.3d 524, 554 (6th Cir.
2014), vacated on other grounds, 2014 WL 10384647 (6th
Cir. 2014). A vote denial claim is generally understood to be
“any claim that is not a vote dilution claim.” Id. The case
now before us involves two vote-denial claims.
The jurisprudence of vote-denial claims is relatively
underdeveloped in comparison to vote-dilution claims. As
explained by the Fourth Circuit, “[T]he predominance of vote
dilution in Section 2 jurisprudence likely stems from the
effectiveness of the now-defunct Section 5 preclearance
requirements that stopped would-be vote denial from
occurring in covered jurisdictions[.]” League of Women
Voters, 769 F.3d at 239.
DNC V. HOBBS 37
In evaluating a vote-denial challenge to a “standard,
practice, or procedure” under the “results test” of Section 2,
most courts, including our own, engage in a two-step process.
We first did so, in abbreviated fashion, in Smith v. Salt River
Project Agricultural Improvement & Power District,
109 F.3d 586 (9th Cir. 1997). We later did so, at somewhat
greater length, in Gonzalez v. Arizona, 677 F.3d 383 (9th Cir.
2012) (en banc). Other circuits have subsequently used a
version of the two-step analysis. See Veasey v. Abbott,
830 F.3d 216, 244–45 (5th Cir. 2016); League of Women
Voters, 769 F.3d at 240 (4th Cir. 2014); Husted, 768 F.3d
at 554 (6th Cir. 2014). Compare Frank v. Walker, 768 F.3d
744, 755 (7th Cir. 2014) (“We are skeptical about the second
of these steps[.]”).
First, we ask whether the challenged standard, practice or
procedure results in a disparate burden on members of the
protected class. That is, we ask 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.” Gingles, 478 U.S. at 44.
The mere existence—or “bare statistical showing”—of a
disparate impact on a racial minority, in and of itself, is not
sufficient. See Salt River, 109 F.3d at 595 (“[A] bare
statistical showing of disproportionate impact on a racial
minority does not satisfy the § 2 ‘results’ inquiry.” (emphasis
in original)).
Second, if we find at the first step that the challenged
practice imposes a disparate burden, we ask whether, under
the “totality of the circumstances,” there is a relationship
between the challenged “standard, practice, or procedure,” on
the one hand, and “social and historical conditions” on the
other. The purpose of the second step is to evaluate a
38 DNC V. HOBBS
disparate burden in its real-world context rather than in the
abstract. As stated by the Supreme Court, “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 [minority] and
white voters to elect their preferred representatives” or to
participate in the political process. Gingles, 478 U.S. at 47;
52 U.S.C. § 10301(b). To determine at the second step
whether there is a legally significant relationship between the
disparate burden on minority voters and the social and
historical conditions affecting them, we consider, as
appropriate, factors such as those laid out in the Senate
Report accompanying the 1982 amendments to the VRA. Id.
at 43 (“The Senate Report which accompanied the 1982
amendments elaborates on the nature of § 2 violations and on
the proof required to establish these violations.”); Veasey,
830 F.3d at 244–45.
The Senate Report provides:
If 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, there is a violation of this section. To
establish a violation, plaintiffs could show a
variety of factors, depending on the kind of
rule, practice, or procedure called into
question.
Typical factors include:
1. the extent of any history of official
discrimination in the state or political
DNC V. HOBBS 39
subdivision that touched the right of
the members of the minority group to
register, to vote, or otherwise to
participate in the democratic process;
2. the extent to which voting in the
elections of the state or political
subdivision is racially polarized;
3. the extent to which the state or
political subdivision has used
unusually large election districts,
majority vote requirements, anti-
single shot provisions, or other voting
practices or procedures that may
enhance the opportunity for
discrimination against the minority
group;
4. if there is a candidate slating
process, whether the members of the
minority group have been denied
access to that process;
5. the extent to which members of the
minority group in the state or political
subdivision bear the effects of
discrimination in such areas as
education, employment and health,
which hinder their ability to
participate effectively in the political
process;
40 DNC V. HOBBS
6. whether political campaigns have
been characterized by overt or subtle
racial appeals;
7. the extent to which members of the
minority group have been elected to
public office in the jurisdiction.
Additional factors that in some cases have
had probative value as part of plaintiffs’
evidence to establish a violation are:
[8.] whether there is a significant lack
of responsiveness on the part of
elected officials to the particularized
needs of the members of the minority
group.
[9.] whether the policy underlying the
state or political subdivision’s use of
such voting qualification, prerequisite
to voting, or standard, practice or
procedure is tenuous.
S. Rep. No. 97-417 (“S. Rep.”), at 28–29 (1982); see Gingles,
478 U.S. at 36–37 (quoting the Senate Report).
The Senate Committee’s list of “typical factors” is neither
comprehensive nor exclusive. S. Rep. at 29. “[T]here is no
requirement that any particular number of factors be proved,
or that a majority of them point one way or the other.” Id.
“[T]he question whether the political processes are ‘equally
open’ depends on a searching practical evaluation of the ‘past
and present reality.’” Id. at 30. An evaluation of the totality
DNC V. HOBBS 41
of circumstances in a Section 2 results claim, including an
evaluation of appropriate Senate factors, requires “a blend of
history and an intensely local appraisal[.]” Gingles, 478 U.S.
at 78 (quoting White v. Regester, 412 U.S. 755, 769–70
(1973)). The Senate factors are relevant to both vote-denial
and vote-dilution claims. Gingles, 478 U.S. at 45 (Senate
factors will be “pertinent to certain types of § 2 claims,”
including vote denial claims, but will be “particularly
[pertinent] to vote dilution claims.”).
Our sister circuits have struck down standards, practices,
or procedures in several vote-denial cases after considering
the Senate factors. In Husted, the Sixth Circuit upheld a
district court’s finding that an Ohio law limiting early voting
violated the results test of Section 2. The court wrote,
We find Senate factors one, three, five, and
nine particularly relevant to a vote denial
claim in that they specifically focus on how
historical or current patterns of discrimination
“hinder [minorities’] ability to participate
effectively in the political process.” Gingles,
478 U.S. at 37 (quoting Senate factor five).
All of the factors, however, can still provide
helpful background context to minorities’
overall ability to engage effectively on an
equal basis with other voters in the political
process.
Husted, 768 F.3d at 555. In Veasey, the Fifth Circuit upheld
a district court’s finding that Texas’s requirement that a photo
ID be presented at the time of voting violated the results test.
Veasey, 830 F.3d at 256–64 (considering Senate factors one,
two, five, six, seven, eight, and nine). In League of Women
42 DNC V. HOBBS
Voters, the Fourth Circuit held that the district court had
clearly erred in finding that the results test had not been
violated by North Carolina’s elimination of same-day
registration, and by North Carolina’s practice of wholly
discarding out-of-precinct ballots. League of Women Voters,
769 F.3d at 245–46 (considering Senate factors one, three,
and nine).
2. OOP Policy and the Results Test
Uncontested evidence in the district court established that
minority voters in Arizona cast OOP ballots at twice the rate
of white voters. The question is whether the district court
clearly erred in holding that Arizona’s policy of entirely
discarding OOP ballots does not violate the “results test” of
Section 2.
a. Step One: Disparate Burden
The question at step one is whether Arizona’s policy of
entirely discarding OOP ballots results in a disparate burden
on a protected class. The district court held that Plaintiffs
failed at step one. The district court clearly erred in so
holding.
Extensive and uncontradicted evidence in the district
court established that American Indian, Hispanic, and African
American voters are over-represented among OOP voters by
a ratio of two to one. See Part II(A), supra. The district court
wrote, “Plaintiffs provided quantitative and statistical
evidence of disparities in OOP voting through the expert
testimony of Dr. Rodden . . . . Dr. Rodden’s analysis is
credible and shows that minorities are over-represented
among the small number of voters casting OOP ballots.”
DNC V. HOBBS 43
Reagan, 329 F. Supp. 3d at 871. Dr. Rodden reported that
this pattern was consistent over time and across counties.
Based on this evidence, the court found that during the 2016
general election, American Indian, Hispanic, and African
American voters were twice as likely as white voters to vote
out-of-precinct and not have their votes counted. Id. at 872.
Despite these factual findings, the district court held that
Arizona’s policy of entirely discarding OOP ballots does not
impose a disparate burden under the results test. The court
gave two reasons to support its holding.
First, the district court discounted the disparate burden on
the ground that there were relatively few OOP ballots cast in
relation to the total number of ballots. Id. at 872. The district
court clearly erred in so doing.
The district court pointed out that the absolute number of
OOP ballots in Arizona fell between 2012 and 2016. It
pointed out, further, that as a percentage of all ballots cast,
OOP ballots fell from 0.47 percent to 0.15 percent during that
period. Id. The numbers and percentages cited by the district
court are accurate. Standing alone, they may be read to
suggest that locating the correct precinct for in-person voting
has become easier and that OOP ballots, as a percentage of
in-person ballots, have decreased accordingly.
However, the opposite is true. Arizona’s OOP policy
applies only to in-person ballots. The proper baseline to
measure OOP ballots to is thus not all ballots, but all in-
person ballots. The district court failed to point out that the
absolute number of all in-person ballots fell more than the
absolute number of OOP ballots, and that, as a result, as a
44 DNC V. HOBBS
percentage of in-person ballots, OOP ballots increased rather
than decreased.
Even putting aside the potentially misleading numbers
and percentages cited by the district court and focusing only
on the decline in the absolute number of OOP ballots, the
court clearly erred. As indicated above, the vote-denial
category encompasses all cases that are not vote-dilution
cases. The number of minority voters adversely affected, and
the mechanism by which they are affected, may vary
considerably. For example, if a polling place denies an
individual minority voter her right to vote based on her race
or color, Section 2 is violated based on that single denial.
However, a different analysis may be appropriate when a
facially neutral policy adversely affects a number of minority
voters. Arizona’s OOP policy is an example. We are willing
to assume in such a case that more than a de minimis number
of minority voters must be burdened before a Section 2
violation based on the results test can be found. Even on that
assumption, however, we conclude that the number of OOP
ballots cast in Arizona’s general election in 2016—3,709
ballots—is hardly de minimis.
We find support for our conclusion in several places. The
Department of Justice submitted an amicus brief to our en
banc panel in support of Arizona. Despite its support for
Arizona, DOJ specifically disavowed the district court’s
conclusion that the number of discarded OOP ballots was too
small to be cognizable under the results test. DOJ wrote:
[T]he district court’s reasoning was not
correct to the extent that it suggested that
plaintiffs’ Section 2 claim would fail solely
DNC V. HOBBS 45
because of the small number of voters
affected. . . .
That is not a proper reading of the statute.
Section 2 prohibits any “standard, practice, or
procedure” that “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) (emphasis added);
see also Frank v. Walker, 819 F.3d 384, 386
(7th Cir. 2016) (Frank II) (“The right to vote
is personal and is not defeated by the fact that
99% of other people can secure the necessary
credentials easily.”). Section 2 safeguards a
personal right to equal participation
opportunities. A poll worker turning away a
single voter because of her race plainly results
in “less opportunity * * * to participate in the
political process and to elect representatives
of [her] choice.” 52 U.S.C. 10301(b).
DOJ Amicus Brief at 28–29. DOJ’s brief appears to treat as
equivalent the case of an individually targeted single minority
voter who is denied the right to vote and the case where a
facially neutral policy affects a single voter. We do not need
to go so far. We need only point out that in the case before us
a substantial number of minority voters are disparately
affected by Arizona’s OOP policy. As long as an adequate
disparate impact is shown, as it has been shown here, and as
long as the other prerequisites for finding a Section 2 violate
are met, each individual in the affected group is protected
under Section 2.
46 DNC V. HOBBS
Further, in League of Women Voters, “approximately
3,348 out-of-precinct provisional ballots” cast by African
American voters would have been discarded under the
challenged North Carolina law. 769 F.3d at 244 (quoting the
district court). The district court had held that this was a
“minimal” number of votes, and that Section 2 was therefore
not violated. The Fourth Circuit reversed, characterizing the
district court’s ruling as a “grave error.” Id. at 241.
Finally, in the 2000 presidential election, the official
margin of victory for President George W. Bush in Florida
was 537 votes. Federal Election Commission, 2000 Official
Presidential General Election Results (Dec. 2001), available
at https://transition.fec.gov/pubrec/2000presgeresults.htm. If
there had been 3,709 additional ballots cast in Florida in
2000, in which minority voters had outnumbered white voters
by a ratio of two to one, it is possible that a different
President would have been elected.
Second, the district court concluded that Arizona’s policy
of rejecting OOP ballots does not impose a disparate burden
on minority voters because Arizona’s policy of entirely
discarding OOP ballots “is not the cause of the disparities in
OOP voting.” Reagan, 329 F. Supp. 3d at 872. The court
wrote that Plaintiffs “have not shown that Arizona’s policy to
not count OOP ballots causes minorities to show up to vote
at the wrong precinct at rates higher than their non-minority
counterparts.” Id. at 873. Again, the district court clearly
erred.
The district court misunderstood what Plaintiffs must
show. Plaintiffs need not show that Arizona caused them to
vote out of precinct. Rather, they need only show that the
result of entirely discarding OOP ballots has an adverse
DNC V. HOBBS 47
disparate impact, by demonstrating “a causal connection
between the challenged voting practice and a prohibited
discriminatory result.” Salt River, 109 F.3d at 595 (emphasis
added). Here, “[t]he challenged practice—not counting OOP
ballots—results in ‘a prohibited discriminatory result’; a
substantially higher percentage of minority votes than white
votes are discarded.” DNC, 904 F.3d at 736 (Thomas, C.J.,
dissenting).
We hold that the district court clearly erred in holding that
Arizona’s policy of entirely discarding OOP ballots does not
result in a disparate burden on minority voters. We
accordingly hold that Plaintiffs have succeeded at step one of
the results test.
b. Step Two: Senate Factors
The question at step two is whether, under the “totality of
circumstances,” the disparate burden on minority voters is
linked to social and historical conditions in Arizona so as “to
cause an inequality in the opportunities enjoyed by [minority]
and white voters to elect their preferred representatives” or to
participate in the political process. Gingles, 478 U.S. at 47;
52 U.S.C. § 10301(b). The district court wrote that because
in its view Plaintiffs failed at step one, discussion of step two
was unnecessary. Reagan, 329 F. Supp. 3d at 873. The court
nonetheless went on to discuss step two and, after considering
various Senate factors, to hold that Plaintiffs failed at this step
as well. The district court clearly erred in so holding.
At step two, we consider relevant Senate factors. Some
Senate factors are “more important to” vote-denial claims, or
to some vote-denial claims, and others, “[i]f present, . . . are
supportive of, but not essential to” the claim. Gingles, 478 at
48 DNC V. HOBBS
48 n.15 (emphasis in original). That is, Senate factors vary in
importance depending on whether a court is dealing with a
vote-dilution or a vote-denial case. The same factors may
also vary in importance from one vote-denial case to another.
We emphasize that the relative importance of the Senate
factors varies from case to case. For example, as we will
describe in a moment, Arizona has a long and unhappy
history of official discrimination connected to voting. Other
States may not have such a history, but depending on the
existence of other Senate factors they may nonetheless be
found to have violated the results test of Section 2.
The district court considered seven of the nine Senate
factors: factor one, the history of official discrimination
connected to voting; factor two, racially polarized voting
patterns; factor five, the effects of discrimination in other
areas on minority groups’ access to voting; factor six, racial
appeals in political campaigns; factor seven, the number of
minorities in public office; factor eight, officials’
responsiveness to the needs of minority groups; and factor
nine, the tenuousness of the justification for the challenged
voting practice.
We analyze below each of these factors, indicating
whether we agree or disagree with the district court’s analysis
as to each. Of the various factors, we regard Senate factors
five (the effects of discrimination in other areas on minorities
access to voting) and nine (the tenuousness of the justification
for the challenged voting practices) as particularly important.
We also regard factor one (history of official discrimination)
as important, as it bears on the existence of discrimination
generally and strongly supports our conclusion under factor
five. Though “not essential,” Gingles, 478 U.S. at 48 n.15,
DNC V. HOBBS 49
the other factors provide “helpful background context.”
Husted, 768 F.3d at 555.
i. Factor One: History of Official Discrimination
Connected to Voting
Arizona has a long history of race-based discrimination
against its American Indian, Hispanic, and African American
citizens. Much of that discrimination is directly relevant to
those citizens’ ability “to register, to vote, or otherwise to
participate in the democratic process.” Id. We recount the
most salient aspects of that history.
Dr. David Berman, a Professor Emeritus of Political
Science at Arizona State University, submitted an expert
report and testified in the district court. The court found
Dr. Berman “credible” and gave “great weight to
Dr. Berman’s opinions.” Reagan, 329 F. Supp. 3d at 834.
The following narrative is largely drawn from Dr. Berman’s
report and the sources on which he relied.
(A) Territorial Period
Arizona’s history of discrimination dates back to 1848,
when it first became an American political entity as a United
States territory. “Early territorial politicians acted on the
belief that it was the ‘manifest destiny’ of the Anglos to
triumph in Arizona over the earlier Native American and
Hispanic civilizations.” David Berman, Expert Report
(Berman) at 4. Dr. Berman wrote that from the 1850s
through the 1880s there were “blood thirsty efforts by whites
to either exterminate” Arizona’s existing American Indian
population or “confine them to reservations.” Id. at 5. In
1871, in the Camp Grant Massacre, white settlers “brutal[ly]
50 DNC V. HOBBS
murder[ed] over 100 Apaches, most of whom were women
and children.” Id. Arizona’s white territorial legislature
passed a number of discriminatory laws, including anti-
miscegenation laws forbidding marriage between whites and
Indians. See James Thomas Tucker et al., Voting Rights in
Arizona: 1982–2006, 17 S. Cal. Rev. L. & Soc. Just. 283, 283
n.3 (2008) (Tucker et al., Voting Rights). Dr. Berman wrote:
“By the late 1880s and the end of th[e] Indian wars, the
realities of life for Native Americans in Arizona were
confinement to reservations, a continuous loss of resources
(water, land, minerals) to settlers, poverty, and pressure to
abandon their traditional cultures.” Berman at 5.
White settlers also discriminated against Arizona’s
Hispanic population. Dr. Berman wrote:
Although Hispanics in the territory’s early
period commonly held prominent roles in
public and political life, as migration
continued they were overwhelmed by a flood
of Anglo-American and European
immigrants. While a small group of
Hispanics continued to prosper, . . . most
Hispanics toiled as laborers who made less
than Anglos even though they performed the
same work.
Id. (footnote omitted). Hispanics in Arizona “found it
difficult to receive acceptance or fair treatment in a society
that had little tolerance for people of Latin American
extraction, and particularly those whose racial make-up
included Indian or African blood.” Id. at 5–6 (quoting Oscar
J. Martinez, Hispanics in Arizona, in Arizona at Seventy-
DNC V. HOBBS 51
Five: The Next Twenty-Five Years 88–89 (Ariz. State Univ.
Pub. History Program & the Ariz. Historical Soc’y, 1987)).
Pursuant to the Treaty of Guadalupe Hidalgo that ended
the Mexican-American War, the United States conferred
citizenship on the approximately 100,000 Hispanics living in
Arizona. In 1909, the Arizona territorial legislature passed a
statute imposing an English language literacy test as a
prerequisite to voter registration. Id. at 10. The test was
specifically designed to prevent the territory’s Hispanic
citizens—who had lower English literacy rates than white
citizens—from voting. Id. At the time, Indians were not
citizens and were not eligible to vote.
In 1910, Congress passed a statute authorizing Arizona,
as a prelude to statehood, to draft a state constitution. Upon
approval of its constitution by Congress, the President, and
Arizona voters, Arizona would become a State. Id. at 11.
Members of Congress viewed Arizona’s literacy test as a
deliberate effort to disenfranchise its Hispanic voters. Id.
The authorizing statute specifically provided that Arizona
could not use its newly adopted literacy test to prevent
Arizona citizens from voting on a proposed constitution. Id.
That same year, Arizona convened a constitutional
convention. Id. at 7. Although Congress had ensured that
Arizona would not use its literacy test to prevent Hispanic
citizens from voting on the constitution, Hispanics were
largely excluded from the drafting process. With the
exception of one Hispanic delegate, all of the delegates to the
convention were white. Id. By comparison, approximately
one-third of the delegates to the 1910 New Mexico
constitutional convention were Hispanic, and one-sixth of the
52 DNC V. HOBBS
48 delegates to the 1849 California constitutional convention
were Hispanic. Id.
The influence of Hispanic delegates is evident in those
States’ constitutions. For example, New Mexico’s
constitution provides that the “right of any citizen of the state
to vote, hold office or sit upon juries, shall never be
restricted, abridged or impaired on account of . . . race,
language or color, or inability to speak, read or write the
English or Spanish languages.” N.M. Const. art. VII, § 3
(1910). It also requires the legislature to provide funds to
train teachers in Spanish instruction. N.M. Const. art. XII,
§ 8 (1910). California’s constitution required all state laws to
be published in Spanish as well as English. Cal. Const. art.
XI, § 21 (1849).
By contrast, Arizona’s constitution did not include such
provisions. Indeed, two provisions required precisely the
opposite. The Arizona constitution provided that public
schools “shall always be conducted in English” and that
“[t]he ability to read, write, speak, and understand the English
language sufficiently well to conduct the duties of the office
without the aid of an interpreter, shall be a necessary
qualification for all State officers and members of the State
Legislature.” Ariz. Const. art. XX, §§ 7, 8 (1910).
(B) Early Statehood
(1) Literacy Test
Arizona became a State in 1912. That same year, the
Arizona legislature passed a statute reimposing an English
literacy test—the test that had been imposed by the territorial
legislature in 1909 and that Congress had forbidden the State
DNC V. HOBBS 53
to use for voting on the state constitution. Berman at 11; see
also James Thomas Tucker, The Battle Over Bilingual
Ballots: Language Minorities and Political Access Under the
Voting Rights Act 20 (Routledge, 2016) (Tucker, Bilingual
Ballots). According to Dr. Berman, the statute was enacted
“to limit ‘the ignorant Mexican vote.’” David R. Berman,
Arizona Politics and Government: The Quest for Autonomy,
Democracy, and Development 75 (Univ. of Neb. Press, 1998)
(Berman, Arizona Politics) (quoting letter between prominent
political leaders); Berman at 12.
County registrars in Arizona had considerable discretion
in administering literacy tests. Registrars used that discretion
to excuse white citizens from the literacy requirement
altogether, to give white citizens easier versions of the test,
and to help white citizens pass the test. See also Katzenbach,
383 U.S. at 312 (describing the same practice with respect to
African American citizens in southern States). In contrast,
Hispanic citizens were often required to pass more difficult
versions of the test, without assistance and without error.
Berman, Arizona Politics at 75; see also Berman at 12.
The literacy test was used for the next sixty years. The
year it was introduced, Hispanic registration declined so
dramatically that some counties lacked enough voters to
justify primaries. Berman at 12. One county had recall
campaigns because enough Hispanic voters had been purged
from voting rolls to potentially change the electoral result.
Id. Arizona would use its literacy test not only against
Hispanics, but also against African Americans and, once they
became eligible to vote in 1948, against American Indians.
The test was finally repealed in 1972, two years after an
amendment to the Voting Rights Act banned literacy tests
nationwide. Id.
54 DNC V. HOBBS
(2) Disenfranchisement of American Indians
In 1912, when Arizona became a State, Indians were not
citizens of Arizona or of the United States. In 1924,
Congress passed the Indian Citizenship Act, declaring all
Indians citizens of the United States and, by extension, of
their States of residence. Indian Citizenship Act of 1924,
Pub. L. No. 68-175, 43 Stat. 253 (codified at 8 U.S.C.
§ 1401(b)).
Indian voting had the potential to change the existing
white political power structure of Arizona. See Patty
Ferguson-Bohnee, The History of Indian Voting Rights in
Arizona: Overcoming Decades of Voter Suppression, 47 Ariz.
St. L.J. 1099, 1103–04 (2015) (Ferguson-Bohnee). Indians
comprised over 14 percent of the population in Arizona, the
second-highest percentage of Indians in any State. Id. at 1102
n.19, 1104. Potential power shifts were even greater at the
county level. According to the 1910 Census, Indians
comprised over 66 percent of the population of Apache
County, over 50 percent of Navajo County, over 34 percent
of Pinal County, and over 34 percent of Coconino County.
Id. at 1104.
Enacted under the Fourteenth and Fifteenth Amendments,
the Indian Citizenship Act should have given Indians the right
to vote in Arizona elections. The Attorney General of
Arizona initially agreed that the Act conferred the right to
vote, and he suggested in 1924 that precinct boundaries
should be expanded to include reservations. Id. at 1105.
However, in the years leading up to the 1928 election,
Arizona’s Governor, county officials, and other politicians
sought to prevent Indians from voting. Id. at 1106–08. The
Governor, in particular, was concerned that Indian voter
DNC V. HOBBS 55
registration—specifically, registration of approximately 1,500
Navajo voters—would hurt his reelection chances. Id.
at 1107–08. The Governor sought legal opinions on ways to
exclude Indian voters, id., and was advised to “adopt a
systematic course of challenging Indians at the time of
election.” Id. at 1108 (quoting Letter from Samuel L. Pattee
to George W.P. Hunt, Ariz. Governor (Sept. 22, 1928)).
County officials challenged individual Indian voter
registrations. Id. at 1107–08.
Prior to the 1928 election, two Indian residents of Pima
County brought suit challenging the county’s rejection of
their voter registration forms. Id. at 1108. The Arizona
Supreme Court sided with the county. The Arizona
constitution forbade anyone who was “under guardianship,
non compos mentis, or insane” from voting. Ariz. Const. art.
VII, § 2 (1910). The Court held that Indians were “wards of
the nation,” and were therefore “under guardianship” and not
eligible to vote. Porter v. Hall, 271 P. 411, 417, 419 (Ariz.
1928).
Arizona barred Indians from voting for the next twenty
years. According to the 1940 census, Indians comprised over
11 percent of Arizona’s population. Ferguson-Bohnee
at 1111. They were the largest minority group in Arizona.
“One-sixth of all Indians in the country lived in Arizona.” Id.
After World War II, Arizona’s Indian citizens returned
from fighting the Axis powers abroad to fight for the right to
vote at home. Frank Harrison, a World War II veteran and
member of the Fort McDowell Yavapai Nation, and Harry
Austin, another member of the Fort McDowell Yavapai
Nation, filed suit against the State. In 1948, the Arizona
Supreme Court overturned its prior decision in Porter v. Hall.
56 DNC V. HOBBS
Harrison v. Laveen, 196 P.2d 456, 463 (Ariz. 1948). Almost
a quarter century after enactment of the Indian Citizenship
Act of 1924, Indian citizens in Arizona had the legal right to
vote.
(C) The 1950s and 1960s
For decades thereafter, however, Arizona’s Indian citizens
often could not exercise that right. The Arizona Supreme
Court’s decision in Harrison v. Laveen did not result in “a
large influx” of new voters because Arizona continued to
deny Indian citizens—as well as Hispanic and African
American citizens—access to the ballot through other means.
Berman at 15.
The biggest obstacle to voter registration was Arizona’s
English literacy test. In 1948, approximately 80 to 90 percent
of Indian citizens in Arizona did not speak or read English.
Tucker et al., Voting Rights at 285; see also Berman at 15. In
the 1960s, about half the voting-age population of the Navajo
Nation could not pass the English literacy test. Ferguson-
Bohnee at 1112 n.88. For Arizona’s Indian—and Hispanic
and African American—citizens who did speak and read
English, discriminatory administration of the literacy test by
county registrars often prevented them from registering. See,
e.g., Berman, Arizona Politics at 75 (“As recently as the
1960s, registrars applied the test to reduce the ability of
blacks, Indians and Hispanics to register to vote.”).
Voter intimidation during the 1950s and 60s often
prevented from voting those American Indian, Hispanic, and
African American citizens who had managed to register.
According to Dr. Berman:
DNC V. HOBBS 57
During the 1960s, it was . . . clear that
more than the elimination of the literacy
test in some areas was going to be
needed to protect minorities. Intimidation
of minority-group members—Hispanics,
African Americans, as well as Native
Americans—who wished to vote was . . . a
fact of life in Arizona. Anglos sometimes
challenged minorities at the polls and asked
them to read and explain “literacy” cards
containing quotations from the U.S.
Constitution. These intimidators hoped to
frighten or embarrass minorities and
discourage them from standing in line to vote.
Vote challenges of this nature were
undertaken by Republican workers in 1962 in
South Phoenix, a largely minority Hispanic
and African-American area. . . . [In addition,]
[p]eople in the non-Native American
community, hoping to keep Native Americans
away from the polls, told them that
involvement could lead to something
detrimental, such as increased taxation, a loss
of reservation lands, and an end to their
special relationship with the federal
government.
Berman at 14–15.
Intimidation of minority voters continued throughout the
1960s. For example, in 1964, Arizona Republicans
undertook voter intimidation efforts throughout Arizona “as
part of a national effort by the Republican Party called
‘Operation Eagle Eye.’” Id. at 14. According to one account:
58 DNC V. HOBBS
The approach was simple: to challenge voters,
especially voters of color, at the polls
throughout the country on a variety of
specious pretexts. If the challenge did not
work outright—that is, if the voter was not
prevented from casting a ballot (provisional
ballots were not in widespread use at this
time)—the challenge would still slow down
the voting process, create long lines at the
polls, and likely discourage some voters who
could not wait or did not want to go through
the hassle they were seeing other voters
endure.
Id. (quoting Tova Andrea Wang, The Politics of Voter
Suppression: Defending and Expanding Americans’ Right to
Vote 44–45 (Cornell Univ. Press, 2012)).
Compounding the effects of the literacy test and voter
intimidation, Arizona “cleansed” its voting rolls. In 1970,
Democrat Raul Castro narrowly lost the election for
Governor. (He would win the governorship four years later
to become Arizona’s first and only Hispanic Governor.)
Castro received 90 percent of the Hispanic vote, but he lost
the election because of low Hispanic voter turnout.
Dr. Berman explained:
[C]ontributing to that low turnout was “a
decision by the Republican-dominated
legislature to cleanse the voting rolls and have
all citizens reregister. This cleansing of the
rolls erased years of registration drives in
barrios across the state. It seems certain that
many Chicanos did not understand that they
DNC V. HOBBS 59
had to reregister, were confused by this
development, and simply stayed away from
the polls.”
Id. at 17 (quoting F. Chris Garcia & Rudolph O. de la Garza,
The Chicano Political Experience 105 (Duxbury Press,
1977)).
(D) Voting Rights Act and Preclearance under Section 5
Congress passed the Voting Rights Act in 1965. See
Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat.
437–446 (codified as amended at 52 U.S.C. §§ 10301–10314,
10501–10508, 10701, 10702). Under Section 4(b) of the Act,
a State or political subdivision qualified as a “covered
jurisdiction” if it satisfied two criteria. Id. § 4(b). The first
was that on November 1, 1964—the date of the presidential
election—the State or political subdivision had maintained a
“test or device,” such as a literacy test, restricting the
opportunity to register or vote. The second was either that
(a) on November 1, 1964, less than 50 percent of the voting-
age population in the jurisdiction had been registered to vote,
or (b) less than 50 percent of the voting-age population had
actually voted in the presidential election of 1964. Seven
States qualified as covered jurisdictions under this formula:
Alabama, Alaska, Georgia, Louisiana, Mississippi, South
Carolina, and Virginia. Determination of the Director of the
Census Pursuant to Section 4(b)(2) of the Voting Rights Act
of 1965, 30 Fed. Reg. 9897-02 (Aug. 7, 1965). Political
subdivisions in four additional States—Arizona, Hawai‘i,
Idaho, and North Carolina—also qualified as covered
jurisdictions. See id.; Determination of the Director of the
Census Pursuant to Section 4(b)(2) of the Voting Rights Act
of 1965, 30 Fed. Reg. 14,505-02 (Nov. 19, 1965).
60 DNC V. HOBBS
Under Section 4(a) of the VRA, covered jurisdictions
were forbidden for a period of five years from using a “test or
device,” such as a literacy test, as a prerequisite to register to
vote, unless a three-judge district court of the District of
Columbia found that no such test had been used by the
jurisdiction during the preceding five years for the purpose of
denying the right to vote on account of race or color. Voting
Rights Act of 1965, Pub. L. No. 89-110, § 4(a). Under
Section 5, covered jurisdictions were forbidden from
changing “any voting qualification or prerequisite to voting,
or standard, practice, or procedure with respect to voting”
unless the jurisdiction “precleared” that change, by either
obtaining approval (a) from a three-judge district court of the
District of Columbia acknowledging that the proposed change
“neither has the purpose nor will have the effect of denying
or abridging the right to vote on account of race or color,” or
(b) from the Attorney General if a proposed change has been
submitted to DOJ and the Attorney General has not
“interposed an objection” within sixty days of the submission.
Id. § 5.
Three counties in Arizona qualified as “covered
jurisdictions” under the 1965 Act: Apache, Coconino, and
Navajo Counties. See Determination of the Director of the
Census Pursuant to Section 4(b)(2) of the Voting Rights Act
of 1965, 30 Fed. Reg. 9897-02, 14,505-02. Those counties
were therefore initially prohibited from using the literacy test
as a prerequisite to voter registration. All three counties were
majority American Indian, and there was a history of high use
of the literacy test and correspondingly low voter turnout.
Berman at 12. However, in 1966, in a suit brought by the
counties against the United States, a three-judge district court
held that there was insufficient proof that a literacy test had
been used by the counties in a discriminatory fashion during
DNC V. HOBBS 61
the immediately preceding five years. See Apache Cty. v.
United States, 256 F. Supp. 903 (D.D.C. 1966). The Navajo
Nation had sought to intervene and present evidence of
discrimination in the district court, but its motion to intervene
had been denied. Id. at 906–13.
Congress renewed and amended the VRA in 1970,
extending it for another five years. Voting Rights Act of
1970, Pub. L. No. 91-285, 84 Stat. 314 (1970). Under the
VRA of 1970, the formula for determining covered
jurisdictions under Section 4(b) was changed to add the
presidential election of 1968 to the percentage-of-voters
criterion. Id. § 4(b). As a result, eight out of fourteen
Arizona counties—including Apache, Navajo, and Coconino
Counties—qualified as covered jurisdictions. Tucker et al.,
Voting Rights at 286. Under the 1970 Act, non-covered
jurisdictions were forbidden from using a “test or device,”
such as a literacy test, to the same degree as covered
jurisdictions. The 1970 Act thus effectively imposed a
nationwide ban on literacy tests. Voting Rights Act of 1970,
Pub. L. No. 91-285, § 201.
Arizona immediately challenged the ban. In Oregon v.
Mitchell, 400 U.S. 112, 132 (1970), the Court unanimously
upheld the ban on literacy tests. Justice Black wrote,
In enacting the literacy test ban . . . [,]
Congress had before it a long history of the
discriminatory use of literacy tests to
disfranchise voters on account of their
race. . . . Congress . . . had evidence to show
that voter registration in areas with large
Spanish-American populations was
consistently below the state and national
62 DNC V. HOBBS
averages. In Arizona, for example, only two
counties out of eight with Spanish surname
populations in excess of 15% showed a voter
registration equal to the state-wide average.
Arizona also has a serious problem of
deficient voter registration among Indians.
Two years after the Court’s decision, Arizona finally repealed
its literacy test. Tucker, Bilingual Ballots, at 21.
In 1975, Congress again renewed and amended the VRA.
Voting Rights Act of 1975, Pub. L. No. 94-73, 89 Stat. 400
(1975). Under the VRA of 1975, the formula for determining
covered jurisdictions under Section 4(b) was updated to add
the presidential election of 1972. Id. § 202. In addition,
Congress expanded the definition of “test or device” to
address discrimination against language minority groups. Id.
§ 203 (Section 4(f)). Pursuant to this amended formula and
definition, any jurisdiction where a single language minority
group (e.g., Spanish speakers who spoke no other language)
constituted more than 5 percent of eligible voters was subject
to preclearance under Section 5 if (a) the jurisdiction did not
offer bilingual election materials during the 1972 presidential
election, and (b) less than 50 percent of the voting-age
population was registered to vote, or less than 50 percent of
the voting-age population actually voted in the 1972
presidential election. Id. §§ 201–203.
Every jurisdiction in Arizona failed the new test. As a
result, the entire State of Arizona became a covered
jurisdiction. Berman at 20–21.
DNC V. HOBBS 63
(E) Continued Obstacles to Voting: The Example of
Apache County
The VRA’s elimination of literacy tests increased political
participation by Arizona’s American Indian, Hispanic, and
African American citizens. However, state and county
officials in Arizona continued to discriminate against
minority voters. Apache County, which includes a significant
part of the Navajo Reservation, provides numerous examples
of which we recount only one.
In 1976, a school district in Apache County sought to
avoid integration by holding a special bond election to build
a new high school in a non-Indian area of the county. See
Apache Cty. High Sch. Dist. No. 90 v. United States, No. 77-
1815 (D.D.C. June 12, 1980); see also Tucker et al., Voting
Rights at 324–26 (discussing the same). Less than a month
before the election, the school district, a “covered
jurisdiction” under the VRA, sought preclearance under
Section 5 for proposed changes in election procedures,
including closure of nearly half the polling stations on the
Navajo Reservation. Letter from J. Stanley Pottinger,
Assistant Attorney Gen., Civil Rights Div., Dep’t of Justice,
to Joe Purcell, Gust, Rosenfeld, Divelbess & Henderson (Oct.
4, 1976). DOJ did not complete its review before the
election. The school district nonetheless held the bond
election using the proposed changes. After the election, DOJ
refused to preclear the proposed changes, finding that they
had a discriminatory purpose or effect. Id. (and subsequent
letters from Assistant Attorney Gen. Drew S. Days III on
May 3, 1977, and June 10, 1977). The school district brought
suit in a three-judge district court, seeking a declaratory
judgment that the election did not violate the VRA.
64 DNC V. HOBBS
The district court found that “[t]he history of Apache
County reveals pervasive and systemic violations of Indian
voting rights.” Apache Cty. High Sch. Dist. No. 90, No. 77-
1815, at 6. The court found that the school district’s behavior
was neither “random[]” nor “unconscious[].” Id. at 14–15.
“Rather, its campaign behavior served to effectuate the
unwritten but manifest policy of minimizing the effect of the
Navajos’ franchise, while maximizing the Anglo vote.” Id.
at 15.
(F) United States v. Arizona and Preclearance during the
1980s and 1990s
During the following two decades, DOJ refused to
preclear numerous proposed voting changes in Arizona. See,
e.g., Goddard v. Babbitt, 536 F. Supp. 538, 541, 543 (D. Ariz.
1982) (finding that a state legislative redistricting plan passed
by the Arizona state legislature “dilut[ed] the San Carlos
Apache Tribal voting strength and divid[ed] the Apache
community of interest”); see also Tucker et al., Voting Rights
at 326–28 (discussing additional examples). In 1988, the
United States sued Arizona, alleging that the State, as well as
Apache and Navajo Counties, violated the VRA by
employing election standards, practices, and procedures that
denied or abridged the voting rights of Navajo citizens. See
United States v. Arizona, No. 88-1989 (D. Ariz. May 22,
1989) (later amended Sept. 27, 1993); see also Tucker et al.,
Voting Rights at 328–30 (discussing the same). A three-judge
district court summarized the complaint:
The challenged practices include alleged
discriminatory voter registration, absentee
ballot, and voter registration cancellation
procedures, and the alleged failure of the
DNC V. HOBBS 65
defendants to implement, as required by
Section 4(f)(4), effective bilingual election
procedures, including the effective
dissemination of election information in
Navajo and providing for a sufficient number
of adequately trained bilingual persons to
serve as translators for Navajo voters needing
assistance at the polls on election day.
United States v. Arizona, No. 88-1989, at 1–2.
Arizona and the counties settled the suit under a Consent
Decree. Id. at 1–26. The Decree required the defendants to
make extensive changes to their voting practices, including
the creation of a Navajo Language Election Information
Program. See id. at 4–23. More than a decade later, those
changes had not been fully implemented. See U.S. Gov’t
Accountability Office, Department of Justice’s Activities to
Address Past Election-Related Voting Irregularities 91–92
(2004), available at http://www.gao.gov/new.items/d04104
1r.pdf (identifying significant deficiencies and finding that
implementation of the Navajo Language Election Information
Program by Apache and Navajo Counties was “inadequate”).
During the 1980s and 1990s, DOJ issued seventeen
Section 5 preclearance objections to proposed changes in
Arizona election procedures, concluding that they had the
purpose or effect of discriminating against Arizona’s
American Indian and/or Hispanic voters. See U.S. Dep’t of
Justice, Voting Determination Letters for Arizona,
https://www.justice.gov/crt/voting-determination-letters-
arizona (last updated Aug. 7, 2015). Three of these
objections were for statewide redistricting plans, one in the
1980s and two in the 1990s. Id. Other objections concerned
66 DNC V. HOBBS
plans for seven of Arizona’s fifteen counties. Id. (objections
to plans for Apache, Cochise, Coconino, Graham, La Paz,
Navajo, and Yuma Counties).
(G) Continuation to the Present Day
Arizona’s pattern of discrimination against minority
voters has continued to the present day.
(1) Practices and Policies
We highlight two examples of continued discriminatory
practices and policies. First, as the district court found, the
manner in which Maricopa County—home to over 60 percent
of Arizona’s population—administers elections has “been of
considerable concern to minorities in recent years.” Reagan,
329 F. Supp. 3d at 871; Berman at 20. During the 2016
presidential primary election, Maricopa County reduced the
number of polling places by 70 percent, from 200 polling
places in 2012 to just 60 polling places in 2016. Berman at
20. The reduction in number, as well as the locations, of the
polling places had a disparate impact on minority voters.
Rodden at 61–68. Hispanic voters were “under-served by
polling places relative to the rest of the metro area,” id. at 62,
and Hispanic and African American voters were forced to
travel greater distances to reach polling places than white,
non-Hispanic voters. Id. at 64–68. The reduction in the
number of polling places “resulted in extremely long lines of
people waiting to vote—some for five hours—and many
people leaving the polls, discouraged from voting by the long
wait.” Berman at 20.
Second, the district court found that Maricopa County has
repeatedly misrepresented or mistranslated key information
DNC V. HOBBS 67
in Spanish-language voter materials. Reagan, 329 F. Supp.
3d at 875 (“Along with the State’s hostility to bilingual
education, Maricopa County has sometimes failed to send
properly translated education[al] materials to its Spanish
speaking residents, resulting in confusion and distrust from
Hispanic voters.”); Berman at 20. In 2012, the official
Spanish-language pamphlet in Maricopa County told
Spanish-speaking voters that the November 6 election would
be held on November 8. Berman at 20. The county did not
make the same mistake in its English-language pamphlet.
Four years later, Spanish-language ballots in Maricopa
County provided an incorrect translation of a ballot
proposition. Id.
(2) Voter Registration and Turnout
Voter registration of Arizona’s minority citizens lags
behind that of white citizens. In November 2016, close to
75 percent of white citizens were registered to vote in
Arizona, compared to 57 percent of Hispanic citizens. See
U.S. Census Bureau, Reported Voting and Registration by
Sex, Race, and Hispanic Origin for November 2016, tbl. 4b.
Arizona has one of the lowest voter turnout rates in the
United States. A 2005 study ranked Arizona forty-seventh
out of the fifty States. See Ariz. State Univ., Morrison Inst.
for Pub. Policy, How Arizona Compares: Real Numbers and
Hot Topics 47 (2005) (relying on Census data); see also
Tucker et al., Voting Rights at 359. In 2012, Arizona ranked
forty-fourth in turnout for that year’s presidential election.
Rodden at 19.
The turnout rate for minority voters is substantially less
than that for white voters. In 2002, 59.8 percent of registered
68 DNC V. HOBBS
Hispanic voters turned out for the election, compared to
72.4 percent of total registered voters. Tucker et al., Voting
Rights at 359–60 (relying on Census data). In the 2012
presidential election, 39 percent of Arizona’s Hispanic
voting-age population and 46 percent of Arizona’s African
American voting-age population turned out for the election,
compared to 62 percent of Arizona’s white population.
Rodden at 20–21. The national turnout rate for African
Americans in that election was 66 percent. Id. In the 2000
and 2004 presidential elections, turnout of Arizona’s
American Indian voters was approximately 23 percentage
points below the statewide average. Tucker et al., Voting
Rights at 360.
(H) District Court’s Assessment of Factor One
The district court recognized Arizona’s history of
discrimination, but minimized its significance. Quoting
Dr. Berman, the court wrote:
In sum, “[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.” Sometimes, however, partisan
objectives are the motivating factor in
decisions to take actions detrimental to the
voting rights of minorities. “[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.” Arizona’s
DNC V. HOBBS 69
recent history is a mixed bag of advancements
and discriminatory actions.
Id. at 875–76 (alterations in original).
The fact that each party in Arizona “has led the charge in
discriminating against minorities” does not diminish the legal
significance of that discrimination. Quite the contrary. That
fact indicates that racial discrimination has long been deeply
embedded in Arizona’s political institutions and that both
parties have discriminated when it has served their purposes.
Further, the “mixed bag of advancements and discriminatory
actions” in “Arizona’s recent history” does not weigh in
Arizona’s favor. As Chief Judge Thomas wrote: “Rather,
despite some advancements, most of which were mandated
by courts or Congress [through Section 5 preclearance],
Arizona’s history is marred by discrimination.” DNC,
904 F.3d at 738 (Thomas, C.J., dissenting). The “history of
official discrimination” in Arizona and its political
subdivisions “touch[ing] the right of the members of the
minority group to register, to vote, or otherwise to participate
in the democratic process” is long, substantial, and
unambiguous. Gingles, 478 U.S. at 36–37 (quoting S. Rep.
at 28–29).
The district court clearly erred in minimizing the strength
of this factor in Plaintiffs’ favor.
ii. Factor Two: Racially Polarized Voting Patterns
Voting in Arizona is racially polarized. The district court
found, “Arizona has a history of racially polarized voting,
which continues today.” Reagan, 329 F. Supp. 3d at 876. In
recent years, the base of the Republican party in Arizona has
70 DNC V. HOBBS
been white. Putting to one side “landslide” elections, in
statewide general elections from 2004 to 2014, 59 percent of
white Arizonans voted for Republican candidates, compared
with 35 percent of Hispanic voters. The district court found
that in the 2016 general election, exit polls “demonstrate that
voting between non-minorities and Hispanics continues to be
polarized along racial lines.” Id. In the most recent
redistricting cycle, the Arizona Independent Redistricting
Commission “found that at least one congressional district
and five legislative districts clearly exhibited racially
polarized voting.” Id.
Voting is particularly polarized when Hispanic and white
candidates compete for the same office. In twelve non-
landslide district-level elections in 2008 and 2010 between a
Hispanic Democratic candidate and a white Republican
candidate, an average of 84 percent of Hispanics, 77 percent
of American Indians, and 52 percent of African Americans
voted for the Hispanic candidate compared to an average of
only 30 percent of white voters.
The district court did not clearly err in assessing the
strength of this factor in Plaintiffs’ favor.
iii. Factor Five: Effects of Discrimination
It is undisputed that “members of the minority group[s]”
in Arizona “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. at 28–29). The district court
found, “Racial disparities between minorities and non-
minorities in socioeconomic standing, income, employment,
education, health, housing, transportation, criminal justice,
DNC V. HOBBS 71
and electoral representation have persisted in Arizona.”
Reagan, 329 F. Supp. 3d at 876.
The district court made factual findings in four key
areas—education, poverty and employment, home ownership,
and health. The district court concluded in each area that the
effects of discrimination “hinder” minorities’ ability to
participate effectively in the political process.
First, the district court wrote:
From 1912 until the Supreme Court’s decision
in Brown v. Board of Education, segregated
education was widespread throughout Arizona
and sanctioned by both the courts and the state
legislature. In fact, the Tucson Public Schools
only recently reached a consent decree with
the DOJ over its desegregation plan in 2013.
The practice of segregation also extended
beyond schools; it was common place to have
segregated public spaces such as restaurants,
swimming pools, and theaters. Even where
schools were not segregated, Arizona enacted
restrictions on bilingual education. As
recently as 2000, Arizona banned bilingual
education with the passage of Proposition
203.
Arizona has a record of failing to provide
adequate funding to teach its non-English
speaking students. This underfunding has
taken place despite multiple court orders
instructing Arizona to develop an adequate
funding formula for its programs, including a
72 DNC V. HOBBS
2005 order in which Arizona was held in
contempt of court for refusing to provide
adequate funding for its educational programs.
“According to the Education Law Center’s
latest National Report Card that provided data
for 2013, Arizona ranked 47th among the
states in per-student funding for elementary
and secondary education.”
Id. at 874–75 (internal citations omitted).
White Arizonans “remain more likely than Hispanics,
Native Americans, and African Americans to graduate from
high school, and are nearly three times more likely to have a
bachelor’s degree than Hispanics and Native Americans.” Id.
at 868. “[I]n a recent survey, over 22.4 percent of Hispanics
and 11.2 percent of Native Americans rated themselves as
speaking English less than ‘very well,’ as compared to only
1.2 percent of non-minorities.” Id. The district court found
that, due to “lower levels of [English] literacy and education,
minority voters are more likely to be unaware of certain
technical [voting] rules, such as the requirement that early
ballots be received by the county recorder, rather than merely
postmarked, by 7:00 p.m. on Election Day.” Id.
Second, Hispanics and African Americans in Arizona live
in poverty at nearly two times the rate of whites. American
Indians live in poverty at three times the rate of whites. Id.
“Wages and unemployment rates for Hispanics, African
Americans, and Native Americans consistently have
exceeded non-minority unemployment rates for the period of
2010 to 2015.” Id. The district court found that minority
voters are more likely to work multiple jobs, less likely to
own a car, and more likely to lack reliable access to
DNC V. HOBBS 73
transportation, id. at 869, all of which make it more difficult
to travel to a polling place—or between an incorrect polling
place and a correct polling place.
Third, the district court found that “[i]n Arizona,
68.9 percent of non-minorities own a home, whereas only
32.3 percent of African Americans, 49 percent of Hispanics,
and 56.1 percent of Native Americans do so.” Id. at 868.
Lower rates of homeownership and correspondingly higher
rates of renting and residential mobility contribute to higher
rates of OOP voting.
Fourth, the district court found that “[a]s of 2015,
Hispanics, Native Americans, and African Americans fared
worse than non-minorities on a number of key health
indicators.” Id. at 868–69. “Native Americans in particular
have much higher rates of disability than non-minorities, and
Arizona counties with large Native American populations
have much higher rates of residents with ambulatory
disabilities.” Id. at 869. “For example, ‘17 percent of Native
Americans are disabled in Apache County, 22 percent in
Navajo County, and 30 percent in Coconino County.’” Id.
“Further, ‘11 percent [of individuals] have ambulatory
difficulties in Apache County, 13 percent in Navajo County,
and 12 percent in Coconino County, all of which contain
significant Native American populations and reservations.’”
Id. (alteration in original). Witnesses credibly testified that
ambulatory disabilities—both alone and combined with
Arizona’s transportation disparities—make traveling to and
between polling locations difficult.
The district court did not clearly err in assessing the
strength of this factor in Plaintiffs’ favor.
74 DNC V. HOBBS
iv. Factor Six: Racial Appeals in Political Campaigns
Arizona’s “political campaigns have been characterized
by overt [and] subtle racial appeals” throughout its history.
Gingles, 478 U.S. at 37 (quoting S. Rep. at 28–29). The
district court found that “Arizona’s racially polarized voting
has resulted in racial appeals in campaigns.” Reagan, 329
F. Supp. 3d at 876.
For example, when Raul Castro, a Hispanic man,
successfully ran for governor in the 1970s, Castro’s opponent,
a white man, urged voters to support him instead because “he
looked like a governor.” Id. “In that same election, a
newspaper published a picture of Fidel Castro with a headline
that read ‘Running for governor of Arizona.’” Id. In his
successful 2010 campaign for State Superintendent of Public
Education, John Huppenthal, a white man running against a
Hispanic candidate, ran an advertisement in which the
announcer said that Huppenthal was “one of us,” was
opposed to bilingual education, and would “stop La Raza,” an
influential Hispanic civil rights organization. Id. When
Maricopa County Attorney Andrew Thomas, a white man,
ran for governor in 2014, he ran an advertisement describing
himself as “the only candidate who has stopped illegal
immigration.” Id. The advertisement “simultaneously
show[ed] a Mexican flag with a red strikeout line through it
superimposed over the outline of Arizona.” Id. Further,
“racial appeals have been made in the specific context of
legislative efforts to limit ballot collection.” Id. The district
court specifically referred to the “racially charged” LaFaro
Video, falsely depicting a Hispanic man, characterized as a
“thug,” “acting to stuff the ballot box.” Id.
DNC V. HOBBS 75
The district court did not clearly err in assessing the
strength of this factor in Plaintiffs’ favor.
v. Factor Seven: Number of Minorities in Public Office
The district court recognized that there has been a racial
disparity in elected officials but minimized its importance.
The court wrote, “Notwithstanding racially polarized voting
and racial appeals, the disparity in the number of minority
elected officials in Arizona has declined.” Id. at 877. Citing
an expert report by Dr. Donald Critchlow—an expert whose
opinion the court otherwise afforded “little weight,” id.
at 836—the court wrote, “Arizona has been recognized for
improvements in the number of Hispanics and Native
Americans registering and voting, as well as in the overall
representation of minority elected officials,” id. at 877.
As recounted above, it is undisputed that American
Indian, Hispanic, and African American citizens are under-
represented in public office in Arizona. Minorities make up
44 percent of Arizona’s total population, but they hold
25 percent of Arizona’s elected offices. Id. Minorities hold
22 percent of state congressional seats and 9 percent of
judgeships. No American Indian or African American has
ever been elected to represent Arizona in the United States
House of Representatives. Only two minorities have been
elected to statewide office in Arizona since the passage of
the VRA. Arizona has never elected an American Indian
candidate to statewide office. No American Indian, Hispanic,
or African American candidate has ever been elected to serve
as a United States Senator representing Arizona.
Arizona’s practice of entirely discarding OOP ballots is
especially important in statewide and United States Senate
76 DNC V. HOBBS
elections. Some votes for local offices may be improperly
cast in an OOP ballot, given that the voter has cast the ballot
in the wrong precinct. But no vote for statewide office or for
the United States Senate is ever improperly cast in an OOP
ballot. Arizona’s practice of wholly discarding OOP ballots
thus has the effect of disproportionately undercounting
minority votes, by a factor of two to one, precisely where the
problem of under-representation in Arizona is most acute.
The district court clearly erred in minimizing the strength
of this factor in Plaintiffs’ favor.
vi. Factor Eight: Officials’ Responsiveness to the Needs
of Minority Groups
The district court found that “Plaintiffs’ evidence . . . is
insufficient to establish a lack of responsiveness on the part
of elected officials to particularized needs of minority
groups.” Id. In support of its finding, the court cited the
activity of one organization, the Arizona Citizens Clean
Elections Commission, which “engages in outreach to various
communities, including the Hispanic and Native American
communities, to increase voter participation” and “develops
an annual voter education plan in consultation with elections
officials and stakeholders,” and whose current Chairman is an
enrolled member of the San Carlos Apache Tribe. Id.
The district court’s finding ignores extensive undisputed
evidence showing that Arizona has significantly underserved
its minority population. “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.” DNC, 904 F.3d
at 740 (Thomas, C.J., dissenting). Further, “Arizona’s public
DNC V. HOBBS 77
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 secondary
education.” Id. “Given the well-documented evidence that
minorities are likelier to depend on public services[,] . . .
Arizona’s refusal to provide adequate state services
demonstrates its nonresponsiveness to minority needs.” Id.;
cf. 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).
Further, the district court’s finding is contradicted
elsewhere in its own opinion. Earlier in its opinion, the court
had written that Arizona has a “political culture that simply
ignores the needs of minorities.” Id. at 876 (citation omitted).
Later in its opinion, the court referred to “Arizona’s history
of advancing partisan objectives with the unintended
consequence of ignoring minority interests.” Id. at 882.
The district court clearly erred in finding that this factor
does not weigh in Plaintiffs’s favor.
vii. Factor Nine: Tenuousness of Justification of the
Policy Underlying the Challenged Restriction
The ninth Senate factor is “whether the policy underlying
the state or political subdivision’s use of such voting
qualification, prerequisite to voting, or standard, practice or
procedure is tenuous.” Gingles, 478 U.S. at 37 (quoting
S. Rep. at 28). The district court found that Arizona’s policy
of entirely discarding OOP ballots is justified by the
importance of Arizona’s precinct-based system of elections.
The court held:
78 DNC V. HOBBS
Precinct-based voting helps Arizona
counties estimate the number of voters who
may be expected at any particular precinct,
allows for better allocation of resources and
personnel, improves orderly administration of
elections, and reduces wait times. The
precinct-based system also ensures that each
voter receives a ballot reflecting only the
races for which that person is entitled to vote,
thereby promoting voting for local candidates
and issues and making ballots less confusing.
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.
This justification is not tenuous.
Reagan, 329 F. Supp. 3d at 878.
The court misunderstood the nature of Plaintiffs’
challenge. Plaintiffs do not challenge Arizona’s precinct-
based system of voting. Indeed, their challenge assumes both
its importance and its continued existence. Rather, their
challenge is to Arizona’s policy, within that system, of
entirely discarding OOP ballots. The question before the
district court was not the justification for Arizona’s precinct-
based system. The question, rather, was the justification for
Arizona’s policy of entirely discarding OOP ballots.
There is no finding by the district court that would justify,
on any ground, Arizona’s policy of entirely discarding OOP
ballots. There is no finding that counting or partially
counting OOP ballots would threaten the integrity of
Arizona’s precinct-based system. Nor is there a finding that
DNC V. HOBBS 79
Arizona has ever sought to minimize the number of OOP
ballots. The lack of such findings is not surprising given the
extreme disparity between OOP voting in Arizona and such
voting in other states, as well as Arizona’s role in causing
voters to vote OOP by, for example, frequently changing the
location of polling places.
The only plausible justification for Arizona’s OOP policy
would be the delay and expense entailed in counting OOP
ballots, but in its discussion of the Senate factors, the district
court never mentioned this justification. Indeed, the district
court specifically found that “[c]ounting OOP ballots is
administratively feasible.” Id. at 860.
Twenty States, including Arizona’s neighboring States of
California, Utah, and New Mexico, count OOP ballots. Id.;
Cal. Elec. Code §§ 14310(a)(3), 14310(c)(3), 15350; Utah
Code Ann. § 20A-4-107(1)(b)(iii), 2(a)(ii), 2(c); N.M. Stat.
Ann § 1-12-25.4(F); N.M. Admin. Code 1.10.22.9(N). The
district court wrote: “Elections administrators in these and
other states have established processes for counting only the
offices for which the OOP voter is eligible to vote.” Reagan,
329 F. Supp. 3d at 861. “Some states, such as New Mexico,
use a hand tally procedure, whereby a team of elections
workers reviews each OOP ballot, determines the precinct in
which the voter was qualified to vote, and marks on a tally
sheet for that precinct the votes cast for each eligible office.”
Id.; see N.M. Admin Code 1.10.22.9(H)–(N). “Other states,
such as California, use a duplication method, whereby a team
of elections workers reviews each OOP ballot, determines the
precinct in which the voter was qualified to vote, obtains a
new paper ballot for the correct precinct, and duplicates the
votes cast on the OOP ballot onto the ballot for the correct
precinct.” Reagan, 329 F. Supp. 3d at 861. “Only the offices
80 DNC V. HOBBS
that appear on both the OOP ballot and the ballot for the
correct precinct are copied. The duplicated ballot then is
scanned through the optical scan voting machine and
electronically tallied.” Id.
Arizona already uses a duplication system, similar to that
used in California, for provisional ballots cast by voters
eligible to vote in federal but not state elections, as well as for
damaged or mismarked ballots that cannot be read by an
optical scanner. Id. The district court briefly discussed the
time that might be required to count or partially count OOP
ballots, but it did not connect its discussion to its
consideration of the Senate factors. The court cited testimony
of a Pima County election official that the county’s
duplication procedure “takes about twenty minutes per
ballot.” Id. The court did not mention that this same official
had stated in his declaration that the procedure instead takes
fifteen minutes per ballot. The court also did not mention
that a California election official had testified that it takes a
very short time to count or partially count the valid votes on
an OOP ballot. That official testified that it takes “several
minutes” in California to confirm the voter’s registration—
which is done for all provisional ballots, in Arizona as well as
in California. Once that is done, the official testified, it takes
one to three minutes to duplicate the ballot.
The district court clearly erred in finding that this factor
does not weigh in Plaintiffs’ favor.
viii. Assessment of Senate Factors
The district court’s “overall assessment” of the Senate
factors was: “In sum, of the germane Senate Factors, the
Court finds that some are present in Arizona and others are
DNC V. HOBBS 81
not.” Id. at 878. Based on this assessment, the court held that
Plaintiffs had not carried their burden at step two. The
district court clearly erred in so holding. The district court
clearly erred in minimizing the strength in favor of Plaintiffs
of Senate factors one (official history of discrimination) and
seven (number of minorities in public office). Further, the
district court clearly erred in finding that Senate factors eight
(officials’ responsiveness to the needs of minority groups)
and nine (tenuousness of the justification of the policy
underlying the challenged provision) do not favor Plaintiffs.
Plaintiffs have successfully shown that all of the considered
Senate factors weigh in their favor. Most important, plaintiffs
have shown that the most pertinent factors, five and nine,
weigh very strongly in their favor.
c. Summary
We hold that the district court clearly erred in holding that
Plaintiffs’ challenge to Arizona’s OOP policy failed under the
results test. We hold that Plaintiffs have carried their burden
at both steps one and two. First, they have shown that
Arizona’s OOP policy imposes a significant disparate burden
on its American Indian, Hispanic, and African American
citizens, resulting in the “denial or abridgement of the right”
of its citizens to vote “on account of race or color.”
52 U.S.C. § 10301(a). Second, they have shown that, under
the “totality of circumstances,” the discriminatory burden
imposed by the OOP policy is in part caused by or linked to
“social and historical conditions” that have or currently
produce “an inequality in the opportunities enjoyed by
[minority] and white voters to elect their preferred
representatives” and to participate in the political process.
Gingles, 478 U.S. at 47; 52 U.S.C. § 10301(b).
82 DNC V. HOBBS
We therefore hold that Arizona’s OOP policy violates the
results test of Section 2 of the Voting Rights Act.
3. H.B. 2023 and the Results Test
Uncontested evidence in the district court established that,
prior to the enactment of H.B. 2023, a large and
disproportionate number of minority voters relied on third
parties to collect and deliver their early ballots. Uncontested
evidence also established that, beginning in 2011, Arizona
Republicans made sustained efforts to limit or eliminate
third-party ballot collection. The question is whether the
district court clearly erred in holding that H.B. 2023 does not
violate the “results test” of Section 2.
a. Step One: Disparate Burden
The question at step one is whether H.B. 2023 results in
a disparate burden on a protected class. The district court
held that Plaintiffs failed at step one. The district court
clearly erred in so holding.
Extensive and uncontradicted evidence established that
prior to the enactment of H.B. 2023, third parties collected a
large and disproportionate number of early ballots from
minority voters. Neither the quantity nor the disproportion
was disputed. Numerous witnesses testified without
contradiction to having personally collected, or to having
personally witnessed the collection of, thousands of early
ballots from minority voters. There is no evidence that white
voters relied to any significant extent on ballot collection by
third parties.
DNC V. HOBBS 83
The district court recognized the disparity in third-party
ballot collection between minority and white citizens. It
wrote that “[t]he Democratic Party and community advocacy
organizations . . . focused their ballot collection efforts on
low-efficacy voters, who trend disproportionately minority.”
Reagan, 329 F. Supp. 3d at 870. “In contrast,” the court
wrote, “the Republican Party has not significantly engaged in
ballot collection as a GOTV strategy.” Id.
The district court nonetheless held that this evidence was
insufficient to establish a violation at step one. To justify its
holding, the court wrote, “[T]he Court finds that Plaintiffs’
circumstantial and anecdotal evidence is insufficient to
establish a cognizable disparity under § 2.” Id. at 868. The
court wrote further:
Considering the vast majority of Arizonans,
minority and non-minority alike, vote without
the assistance of third-parties who would not
fall within H.B. 2023’s exceptions, 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. at 871.
First, the court clearly erred in discounting the evidence
of third-party ballot collection as merely “circumstantial and
anecdotal.” The evidence of third-party ballot collection was
not “circumstantial.” Rather, as recounted above, it was
direct evidence from witnesses who had themselves acted as
third-party ballot collectors, had personally supervised third-
party ballot collection, or had personally witnessed third-
84 DNC V. HOBBS
party ballot collection by others. Nor was the evidence
merely “anecdotal.” As recounted above, numerous
witnesses provided consistent and uncontradicted testimony
about third-party ballot collection they had done, supervised,
or witnessed. This evidence established that many thousands
of early ballots were collected from minority voters by third
parties. The court itself found that white voters did not
significantly rely on third-party ballot collection. No better
evidence was required to establish that large and
disproportionate numbers of early ballots were collected from
minority voters.
Second, the court clearly erred by comparing the number
of early ballots collected from minority voters to the much
greater number of all ballots cast “without the assistance of
third parties,” and then holding that the relatively smaller
number of collected early ballots did not cause a “meaningful
inequality.” Id. at 871. In so holding, the court repeated the
clear error it made in comparing the number of OOP ballots
to the total number of all ballots cast. Just as for OOP ballots,
the number of ballots collected by third parties from minority
voters surpasses any de minimis number.
We hold that H.B. 2023 results in a disparate burden on
minority voters, and that the district court clearly erred in
holding otherwise. We accordingly hold that Plaintiffs have
succeeded at step one of the results test.
b. Step Two: Senate Factors
The district court did not differentiate between Arizona’s
OOP policy and H.B. 2023 in its discussion of step two.
Much of our analysis of the Senate factors for Arizona’s OOP
policy applies with equal force to the factors for H.B. 2023.
DNC V. HOBBS 85
Again, we regard Senate factors five (the effects of
discrimination in other areas on minorities access to voting)
and nine (the tenuousness of the justification for the
challenged voting practices) as particularly important, given
the nature of Plaintiffs’ challenge to H.B. 2023. We also
regard factor one (history of official discrimination) as
important, as it strongly supports our conclusion under factor
five. Though “not essential,” Gingles, 478 U.S. at 48 n.15,
the other less important factors provide “helpful background
context.” Husted, 768 F.3d at 555.
We do not repeat here the entirety of our analysis of
Arizona’s OOP policy. Rather, we incorporate that analysis
by reference and discuss only the manner in which the
analysis is different for H.B. 2023.
i. Factor One: History of Official Discrimination
Connected to Voting
We recounted above Arizona’s long history of race-based
discrimination in voting. H.B. 2023 grows directly out of that
history. During the Republicans’ 2011 attempt to limit ballot
collection by third parties, Arizona was still subject to
preclearance under Section 5. When DOJ asked for more
information about whether the relatively innocuous ballot-
collection provision of S.B. 1412 had the purpose or would
have the effect of denying minorities the right to vote and
requested more information, Arizona withdrew the
preclearance request. It did so because there was evidence in
the record that the provision intentionally targeted Hispanic
voters. In 2013, public opposition threatened to repeal H.B.
2305 by referendum. If passed, the referendum would have
required that any future bill on the same topic pass the
legislature by a supermajority. Republicans repealed H.B.
86 DNC V. HOBBS
2305 rather than face a referendum. Finally, after the
Supreme Court’s decision in Shelby County eliminated
preclearance, Arizona enacted H.B. 2023, making third-party
ballot collection a felony. The campaign was marked by
race-based appeals, most prominently in the LaFaro Video
described above.
As it did with respect to OOP voting, the district court
clearly erred in minimizing the strength of this factor in
Plaintiffs’ favor.
ii. Factor Two: Racially Polarized Voting Patterns
H.B. 2023 connects directly to racially polarized voting
patterns in Arizona. The district court found that “H.B. 2023
emerged in the context of racially polarized voting.” Reagan,
329 F. Supp. 3d at 879. Senator Shooter, who introduced the
bill that became S.B. 1412—the predecessor to H.B. 2023—
was motivated by the “high degree of racial polarization in
his district” and introduced the bill following a close, racially
polarized election. Id.
The district court did not clearly err in assessing the
strength of this factor in Plaintiffs’ favor.
iii. Factor Five: Effects of Discrimination
H.B. 2023 is closely linked to the effects of
discrimination that “hinder” the ability of American Indian,
Hispanic, and African American voters “to participate
effectively in the political process.” Gingles, 478 U.S. at 37.
The district court found that American Indian, Hispanic, and
African American Arizonans “are significantly less likely
than non-minorities to own a vehicle, more likely to rely upon
DNC V. HOBBS 87
public transportation, more likely to have inflexible work
schedules, and more likely to rely on income from hourly
wage jobs.” Reagan, 329 F. Supp. 3d at 869. In addition,
“[r]eady access to reliable and secure mail service is
nonexistent in some minority communities.” Id. Minority
voters in rural communities disproportionately lack access to
outgoing mail, while minority voters in urban communities
frequently encounter unsecure mailboxes and mail theft. Id.
These effects of discrimination hinder American Indian,
Hispanic, and African American voters’ ability to return early
ballots without the assistance of third-party ballot collection.
The district court did not clearly err in assessing the
strength of this factor in Plaintiffs’ favor.
iv. Factor Six: Racial Appeals in Political Campaigns
The enactment of H.B. 2023 was the direct result of racial
appeals in a political campaign. The district court found that
“racial appeals [were] made in the specific context of
legislative efforts to limit ballot collection.” Id. at 876.
Proponents of H.B. 2023 relied on “overt or subtle racial
appeals,” Gingles, 478 U.S. at 37, in advocating for H.B.
2023, including the “racially tinged” LaFaro Video, Reagan,
329 F. Supp. 3d at 876–77 (characterizing the LaFaro Video
as one of the primary motivators for H.B. 2023). The district
court concluded, “[Senator] 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.” Reagan, 329
F. Supp. 3d at 880.
The district court did not clearly err in assessing the
strength of this factor in Plaintiff’s favor.
88 DNC V. HOBBS
v. Factor Seven: Number of Minorities in Public Office
Because Arizona’s OOP policy had a particular
connection to the election of minorities to statewide office
and to the United States Senate, we concluded that the factor
of minorities in public office favored Plaintiffs. That
particular connection to statewide office does not exist
between H.B. 2023 and election of minorities. However,
H.B. 2023 is likely to have a pronounced effect in rural
counties with significant American Indian and Hispanic
populations who disproportionately lack reliable mail and
transportation services, and where a smaller number of votes
can have a significant impact on election outcomes. In those
counties, there is likely to be a particular connection to
election of American Indian and Hispanic candidates to
public office.
As it did with respect to OOP voting, the district court
clearly erred in minimizing the strength of this factor in
Plaintiffs’ favor.
vi. Factor Eight: Officials’ Responsiveness to the Needs
of Minority Groups
The district court found that “Plaintiffs’ evidence . . . is
insufficient to establish a lack of responsiveness on the part
of elected officials to particularized needs of minority
groups.” Id. at 877. As discussed above, this finding ignores
extensive evidence to the contrary and is contradicted by the
court’s statements elsewhere in its opinion.
The district court clearly erred in finding that this factor
does not weigh in Plaintiffs’ favor.
DNC V. HOBBS 89
vii. Factor Nine: Tenuousness of Justification of the
Policy Underlying the Challenged Restriction
The district court relied on two justifications for H.B.
2023: That H.B. 2023 is aimed at preventing ballot fraud “by
creating a chain of custody for early ballots and minimizing
the opportunities for ballot tampering, loss, and destruction”;
and that H.B. 2023 is aimed at improving and maintaining
“public confidence in election integrity.” Id. at 852. We
address these justifications in turn.
First, third-party ballot collection was permitted for many
years in Arizona before the passage of H.B. 2023. No one
has ever found a case of voter fraud connected to third-party
ballot collection in Arizona. This has not been for want of
trying. The district court described the Republicans’
unsuccessful attempts to find instances of fraud:
The Republican National Lawyers
Association (“RNLA”) performed a study
dedicated to uncovering cases of voter fraud
between 2000 and 2011. The study found no
evidence of ballot collection or delivery fraud,
nor did a follow-up study through May 2015.
Although the RNLA reported instances of
absentee ballot fraud, none were tied to ballot
collection and delivery. Likewise, the
Arizona Republic conducted a study of voter
fraud in Maricopa County and determined
that, out of millions of ballots cast in
Maricopa County from 2005 to 2013, a total
of 34 cases of fraud were prosecuted. Of
these, 18 involved a felon voting without her
rights first being restored. Fourteen involved
90 DNC V. HOBBS
non-Arizona citizens voting. The study
uncovered no cases of fraud perpetrated
through ballot collection.
Id. at 853 (internal citations omitted).
The district court wrote, “[T]here has never been a case
of voter fraud associated with ballot collection charged in
Arizona.” Id. at 852. “No specific, concrete example of
voter fraud perpetrated through ballot collection was
presented by or to the Arizona legislature during the debates
on H.B. 2023 or its predecessor bills.” Id. at 852–53. “No
Arizona county produced evidence of confirmed ballot
collection fraud in response to subpoenas issued in this case,
nor has the Attorney General’s Office produced such
information.” Id. at 853.
Ballot-collection-related fraud was already criminalized
under Arizona law when H.B. 2023 was enacted. Collecting
and failing to turn in someone else’s ballot was already a
class 5 felony. Ariz. Rev. Stat. § 16-1005(F). Marking
someone else’s ballot was already a class 5 felony. Id. § 16-
1005(A). Selling one’s own ballot, possessing someone
else’s ballot with the intent to sell it, knowingly soliciting the
collection of ballots by misrepresenting one’s self as an
election official, and knowingly misrepresenting the location
of a ballot drop-off site were already class 5 felonies. Id.
§ 16-1005(B)–(E). These criminal prohibitions are still in
effect. Arizona also takes measures to ensure the security of
early ballots, such as using “tamper evident envelopes and a
rigorous voter signature verification procedure.” Reagan,
329 F. Supp. 3d at 854.
DNC V. HOBBS 91
The history of H.B. 2023 shows that its proponents had
other aims in mind than combating fraud. H.B. 2023 does not
forbid fraudulent third-party ballot collection. It forbids non-
fraudulent third-party ballot collection. To borrow an
understated phrase, the anti-fraud rationale advanced in
support of H.B. 2023 “seems to have been contrived.” Dep’t
of Commerce v. New York, 139 S. Ct. 2551, 2575 (2019).
Second, we recognize the importance of public
confidence in election integrity. We are aware that the
federal bipartisan Commission on Federal Election Reform,
charged with building public confidence, recommended inter
alia that States “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). We are aware of the recent case of voter
fraud in North Carolina involving collection and forgery of
absentee ballots by a political operative hired by a Republican
candidate. And we are aware that supporters of H.B. 2023
and its predecessor bills sought to convince Arizona voters,
using false allegations and racial innuendo, that third-party
ballot collectors in Arizona have engaged in fraud.
Without in the least discounting either the common sense
of the bipartisan commission’s recommendation or the
importance of public confidence in the integrity of elections,
we emphasize, first, that the Supreme Court has instructed us
in Section 2 cases to make an “intensely local appraisal.”
Gingles, 478 U.S. at 78. The third-party ballot collection
fraud case in North Carolina has little bearing on the case
before us. We are concerned with Arizona, where third-party
ballot collection has had a long and honorable history, and
where the acts alleged in the criminal indictment in North
92 DNC V. HOBBS
Carolina were illegal under Arizona law before the passage
of H.B. 2023, and would still be illegal if H.B. 2023 were no
longer the law.
We emphasize, further, that if some Arizonans today
distrust third-party ballot collection, it is because of the
fraudulent campaign mounted by proponents of H.B. 2023.
Those proponents made strenuous efforts to persuade
Arizonans that third-party ballot collectors have engaged in
election fraud. To the degree that there has been any fraud,
it has been the false and race-based claims of the proponents
of H.B. 2023. It would be perverse if those proponents, who
used false statements and race-based innuendo to create
distrust, could now use that very distrust to further their aims
in this litigation.
The district court clearly erred in finding that this factor
does not weigh in Plaintiffs’ favor. This factor either weighs
in Plaintiffs’ favor or is, at best, neutral.
viii. Assessment
The district court made the same overall assessment of the
Senate factors in addressing H.B. 2023 as in addressing
Arizona’s policy of discarding OOP ballots. As it did with
respect to OOP ballots, the court concluded that Plaintiffs had
not carried their burden at step two. Here, too, the district
court’s conclusion was clearly erroneous. Contrary to the
court’s conclusion, Plaintiffs have successfully shown that six
of the Senate factors weigh in their favor and that the
remaining factor weighs in their favor or is neutral.
DNC V. HOBBS 93
c. Summary
We hold that the district court clearly erred in holding that
Plaintiffs’ challenge to H.B. 2023 failed under the results test.
We hold that Plaintiffs have carried their burden at both steps
one and two. First, they have shown that H.B. 2023 imposes
a disparate burden on American Indian, Hispanic, and African
American citizens, resulting in the “denial or abridgement of
the right” of its citizens to vote “on account of race or color.”
52 U.S.C. § 10301(a). Second, they have shown that, under
the “totality of circumstances,” the discriminatory burden
imposed by H.B. 2023 is in part caused by or linked to “social
and historical conditions” that have or currently produce “an
inequality in the opportunities enjoyed by [minority] and
white voters to elect their preferred representatives” and to
participate in the political process. Gingles, 478 U.S. at 47;
52 U.S.C. § 10301(b).
We therefore conclude that H.B. 2023 violates the results
test of Section 2 of the Voting Rights Act.
B. Intent Test: H.B. 2023
As indicated above, uncontested evidence in the district
court established that before enactment of H.B. 2023, a large
and disproportionate number of minority voters relied on
third parties to collect and deliver their early ballots.
Uncontested evidence also established that, beginning in
2011, Arizona Republicans made sustained efforts to outlaw
third-party ballot collection. After a racially charged
campaign, they finally succeeded in passing H.B. 2023. The
question is whether the district court clearly erred in holding
that H.B. 2023 does not violate the “intent test” of Section 2.
94 DNC V. HOBBS
1. The Intent Test
Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977), provides the
framework for analyzing a claim of intentional discrimination
under Section 2. See, e.g., N.C. State Conference of NAACP
v. McCrory, 831 F.3d 204, 220–21 (4th Cir. 2016). Under
Arlington Heights, Plaintiffs have an initial burden of
providing “[p]roof of racially discriminatory intent or
purpose.” Arlington Heights, 429 U.S. at 265. Plaintiffs need
not show that discriminatory purpose was the “sole[]” or even
a “primary” motive for the legislation. Id. Rather, Plaintiffs
need only show that discriminatory purpose was “a
motivating factor.” Id. at 265–66 (emphasis added).
“Determining whether invidious discriminatory purpose
was a motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.” Id. at 266. “[D]iscriminatory purpose may often
be inferred from the totality of the relevant facts, including
the fact, if it is true, that the law bears more heavily on one
race than another.” Washington v. Davis, 426 U.S. 229, 242
(1976). Because “[o]utright admissions of impermissible
racial motivation are infrequent[,] . . . plaintiffs often must
rely upon other evidence,” including the broader context
surrounding passage of the legislation. Hunt v. Cromartie,
526 U.S. 541, 553 (1999). “In a vote denial case such as the
one here, where the plaintiffs allege that the legislature
imposed barriers to minority voting, this holistic approach is
particularly important, for ‘[d]iscrimination today is more
subtle than the visible methods used in 1965.’” N.C. State
Conference of NAACP, 831 F.3d at 221 (quoting H.R. Rep.
No. 109–478, at 6 (2006)).
DNC V. HOBBS 95
Arlington Heights provided a non-exhaustive list of
factors that a court should consider. Arlington Heights,
429 U.S. at 266. The factors include (1) the historical
background; (2) the sequence of events leading to enactment,
including any substantive or procedural departures from the
normal legislative process; (3) the relevant legislative history;
and (4) whether the law has a disparate impact on a particular
racial group. Id. at 266–68.
“Once racial discrimination is shown to have been a
‘substantial’ or ‘motivating’ factor behind enactment of the
law, the burden shifts to the law’s defenders to demonstrate
that the law would have been enacted without this factor.”
Hunter v. Underwood, 471 U.S. 222, 228 (1985). In
determining whether a defendant’s burden has been carried,
“courts must scrutinize the legislature’s actual non-racial
motivations to determine whether they alone can justify the
legislature’s choices.” N.C. State Conference of NAACP,
831 F.3d at 221 (emphases in original) (citing Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 728
(1982)). “In the context of a § 2 discriminatory intent
analysis, one of the critical background facts of which a court
must take notice is whether voting is racially polarized.” Id.
“[I]ntentionally targeting a particular race’s access to the
franchise because its members vote for a particular party, in
a predictable manner, constitutes discriminatory purpose.”
Id. at 222.
96 DNC V. HOBBS
2. H.B. 2023 and the Intent Test
a. Arlington Heights Factors and Initial Burden of Proof
The district court wrote, “Having considered [the
Arlington Heights] factors, the Court finds that H.B. 2023
was not enacted with a racially discriminatory purpose.”
Reagan, 329 F. Supp. 3d at 879. The court then went on to
discuss each of the four factors, but did not attach any
particular weight to any of them. In holding that the
Plaintiffs had not shown that discriminatory purpose was “a
motivating factor,” the district court clearly erred.
We address the Arlington Heights factors in turn.
i. Historical Background
“A historical pattern of laws producing discriminatory
results provides important context for determining whether
the same decisionmaking body has also enacted a law with
discriminatory purpose.” N.C. State Conference of NAACP,
831 F.3d at 223–24; see Arlington Heights, 429 U.S. at 267
(“The historical background of the decision is one evidentiary
source, particularly if it reveals a series of official actions
taken for invidious purposes.”). As recounted above, the
Arizona legislature has a long history of race-based
discrimination, disenfranchisement, and voter suppression,
dating back to Arizona’s territorial days. Further, the history
of H.B. 2023 itself reveals invidious purposes.
In addressing the “historical background” factor, the
district court mentioned briefly the various legislative efforts
to restrict third-party ballot collection that had been
“spearheaded” by Senator Shooter, described briefly
DNC V. HOBBS 97
Senator Shooter’s allegations of third-party ballot fraud, and
alluded to the “racially-tinged” LaFaro Video. Reagan, 329
F. Supp. 3d at 879–80. But the district court discounted their
importance. We discuss the court’s analysis below, under the
third Arlington Heights factor.
ii. Sequence of Events Leading to Enactment
“The specific sequence of events leading up to the
challenged decision . . . may shed some light on the
decisionmaker’s purposes.” Arlington Heights, 429 U.S.
at 267. We recounted above the sequence of events leading
to the enactment of H.B. 2023. The district court
acknowledged this history but again discounted its
importance. We discuss the court’s analysis below, under the
third Arlington Heights factor.
iii. Relevant Legislative History
“The legislative . . . history may be highly relevant,
especially where there are contemporary statements by
members of the decisionmaking body[.]” Id. at 268. The
district court found that legislators voted for H.B. 2023 in
response to the “unfounded and often farfetched allegations
of ballot collection fraud” made by former Senator Shooter,
and the “racially-tinged LaFaro Video.” Reagan, 329
F. Supp. 3d at 880. As Chief Judge Thomas wrote: “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.” DNC, 904 F.3d at 748
(Thomas, C.J., dissenting) (quoting Reagan, 329 F. Supp. 3d
at 880) (emphasis in original).
98 DNC V. HOBBS
Senator Shooter was one of the major proponents of the
efforts to limit third-party ballot collection and was
influential in the passage of H.B. 2023. Reagan, 329 F. Supp.
3d at 879. According to the district court, Senator Shooter
made “demonstrably false” allegations of ballot collection
fraud. Id. at 880. Senator Shooter’s efforts to limit ballot
collection were motivated in substantial part by the “high
degree of racial polarization in his district.” Id. at 879. He
was “motivated by a desire to eliminate” the increasingly
effective efforts to ensure that Hispanic votes in his district
were collected, delivered, and counted. Id.
The LaFaro Video provides even stronger evidence of
racial motivation. Maricopa County Republican Chair
LaFaro produced a video showing “a man of apparent
Hispanic heritage”—a volunteer with a get-out-the-vote
organization—apparently dropping off ballots at a polling
place. Id. at 876. LaFaro’s voice-over narration included
unfounded statements, id. at 877, “that the man was acting to
stuff the ballot box” and that LaFaro “knew that he was a
thug,” id. at 876. The video was widely distributed. It was
“shown at Republican district meetings,” “posted on
Facebook and YouTube,” and “incorporated into a television
advertisement.” Id. at 877.
The district court used the same rationale to discount the
importance of all of the first three Arlington Heights factors.
It pointed to the “sincere belief,” held by some legislators,
that fraud in third-party ballot collection was a problem that
needed to be addressed. The district court did so even though
it recognized that the belief was based on the false and race-
based allegations of fraud by Senator Shooter and other
proponents of H.B. 2023. The court wrote: “Shooter’s
allegations and the LaFaro Video were successful in
DNC V. HOBBS 99
convincing H.B. 2023’s proponents that ballot collection
presented opportunities for fraud that did not exist for in-
person voting[.]” Id. at 880.
We accept the district court’s conclusion that some
members of the legislature who voted for H.B. 2023 had a
sincere, though mistaken, non-race-based belief that there had
been fraud in third-party ballot collection, and that the
problem needed to be addressed. However, as the district
court found, that sincere belief had been fraudulently created
by Senator Shooter’s false allegations and the “racially-
tinged” LaFaro video. Even though some legislators did not
themselves have a discriminatory purpose, that purpose may
be attributable to their action under the familiar “cat’s paw”
doctrine. The doctrine is based on the fable, often attributed
to Aesop, in which a clever monkey induces a cat to use its
paws to take chestnuts off of hot coals for the benefit of the
monkey.
For example, we wrote in Mayes v. Winco Holdings, Inc.,
846 F.3d 1274 (9th Cir. 2017):
[T]he animus of a supervisor can affect an
employment decision if the supervisor
“influenced or participated in the
decisionmaking process.” Dominguez-Curry
[v. Nev. Transp. Dep’t], 424 F.3d [1027,]
1039–40 [(9th Cir. 2017)]. Even if the
supervisor does not participate in the ultimate
termination decision, a “supervisor’s biased
report may remain a causal factor if the
independent investigation takes it into account
without determining that the adverse action
was, apart from the supervisor’s
100 DNC V. HOBBS
recommendation, entirely justified.” Staub v.
Proctor Hosp., 562 U.S. 411, 421 (2011).
Id. at 1281; see also Poland v. Chertoff , 494 F.3d 1174, 1182
(9th Cir. 2007) (“[I]f a subordinate . . . sets in motion a
proceeding by an independent decisionmaker that leads to an
adverse employment action, the subordinate’s bias is imputed
to the employer if the plaintiff can prove that the allegedly
independent adverse employment decision was not actually
independent because the biased subordinate influenced or was
involved in the decision or decisionmaking process.”).
The good-faith belief of these sincere legislators does not
show a lack of discriminatory intent behind H.B. 2023.
Rather, it shows that well meaning legislators were used as
“cat’s paws.” Convinced by the false and race-based
allegations of fraud, they were used to serve the
discriminatory purposes of Senator Shooter, Republican
Chair LaFaro, and their allies.
We hold that the district court clearly erred in discounting
the importance of the first three Arlington Heights factors.
We hold that all three factors weigh in favor of showing that
discriminatory intent was a motivating factor in enacting H.B.
2023.
iv. Disparate Impact on a Particular Racial Group
“The impact of the official action[,] whether it ‘bears
more heavily on one race than another,’ may provide an
important starting point. Sometimes a clear pattern,
unexplainable on grounds other than race, emerges from the
effect of the state action even when the governing legislation
appears neutral on its face.” Arlington Heights, 429 U.S.
DNC V. HOBBS 101
at 266 (internal citation omitted). As described above,
uncontested evidence shows that H.B. 2023 has an adverse
and disparate impact on American Indian, Hispanic, and
African American voters. The district court found that the
legislature “was aware” of the impact of H.B. 2023 on what
the court called “low-efficacy minority communities.”
Reagan, 329 F. Supp. 3d at 881.
It appears that the district court weighed this factor in
favor of showing discriminatory intent as a motivating factor
in enacting H.B. 2023. The court did not clearly err in so
doing.
v. Assessment
We hold that the district court clearly erred in holding that
Plaintiffs failed to carry their initial burden of proof of
showing that racial discrimination was a motivating factor
leading to the enactment of H.B. 2023. We hold that all four
of the Arlington Heights factors weigh in favor of Plaintiffs.
Our holding does not mean that the majority of the Arizona
state legislature “harbored racial hatred or animosity toward
any minority group.” N.C. State Conference of NAACP,
831 F.3d at 233. “But the totality of the circumstances”—
Arizona’s long history of race-based voting discrimination;
the Arizona legislature’s unsuccessful efforts to enact less
restrictive versions of the same law when preclearance was a
threat; the false, race-based claims of ballot collection fraud
used to convince Arizona legislators to pass H.B. 2023; the
substantial increase in American Indian and Hispanic voting
attributable to ballot collection that was targeted by H.B.
2023; and the degree of racially polarized voting in
Arizona—“cumulatively and unmistakably reveal” that
102 DNC V. HOBBS
racial discrimination was a motivating factor in enacting
H.B. 2023. Id.
b. Would H.B. 2023 Otherwise Have Been Enacted
At the second step of the Arlington Heights analysis,
Arizona has the burden of showing that H.B. 2023 would
have been enacted without racial discrimination as a
motivating factor. Because the district court held that
Plaintiffs had not carried their initial burden, it did not reach
the second step of the Arlington Heights analysis.
Although there is no holding of the district court directed
to Arlington Heights’ second step, the court made a factual
finding that H.B. 2023 would not have been enacted without
racial discrimination as a motivating factor. The court
specifically found that H.B. 2023 would not have been
enacted without Senator Shooter’s and LaFaro’s false and
race-based allegations of voter fraud. The court wrote, “The
legislature was motivated by a misinformed belief that ballot
collection fraud was occurring, but a sincere belief that mail-
in ballots lacked adequate prophylactic safeguards as
compared to in-person voting.” Reagan, 329 F. Supp. 3d at
882. That is, members of the legislature, based on the
“misinformed belief” created by Shooter, LaFaro, and their
allies and serving as their “cat’s paws,” voted to enact H.B.
2023. See Poland, 494 F.3d at 1182. Based on the court’s
finding, we hold that Arizona has not carried its burden of
showing that H.B. 2023 would have been enacted without the
motivating factor of racial discrimination.
DNC V. HOBBS 103
c. Summary
We hold that the district court clearly erred in holding that
Plaintiffs failed to establish that H.B. 2023 violates the intent
test of Section 2 of the VRA. A holding that H.B. 2023
violates the intent test of Section 2 necessarily entails a
holding that it also violates the Fifteenth Amendment.
III. Response to Dissents
We respectfully disagree with our dissenting colleagues.
For the most part, our response to their contentions is
contained in the body of our opinion and needs no
elaboration. Several contentions, however, merit a specific
response.
A. Response to the First Dissent
Our first dissenting colleague, Judge O’Scannlain, makes
several mistakes.
First, our colleague contends that H.B. 2023 does not
significantly change Arizona law. Our colleague writes:
For years, Arizona has restricted who may
handle early ballots. Since 1992, Arizona has
prohibited anyone but the elector himself
from possessing “that elector’s unvoted
absentee ballot.” 1991 Ariz. Legis. Serv. Ch.
310, § 22 (S.B. 1390) (West). In 2016,
Arizona enacted a parallel regulation, H.B.
104 DNC V. HOBBS
2023 (the “ballot-collection” policy),
concerning the collection of early ballots.
Diss. Op. at 116–117 (emphases added).
Our colleague appends a footnote to the first sentence in
the passage just quoted:
The majority’s effort to deny history can
easily be dismissed. Maj. Op. 104–105. As
Judge Bybee’s dissent ably recounts, not only
Arizona but 21 other states have restricted
early balloting for years. Bybee, J. Diss. Op.
157–158.
Our colleague fails to recognize the distinction between
“unvoted” and “voted” ballots. Contrary to our colleague’s
contention, H.B. 2023 is not “a parallel regulation” to already
existing Arizona law. Under prior Arizona law, possession of
an “unvoted absentee ballot” was forbidden. Arizona law in
no way restricted non-fraudulent possession of voted absentee
ballots (absentee ballots on which the vote had already been
indicated). Unlike our colleague, the district court recognized
the distinction. It wrote:
Since 1997, it has been the law in Arizona
that “[o]nly the elector may be in possession
of that elector’s unvoted early ballot.” A.R.S.
§ 16-542(D). In 2016, Arizona amended
A.R.S. § 16-1005 by enacting H.B. 2023,
DNC V. HOBBS 105
which limits who may collect a voter’s voted
or unvoted early ballot.
Reagan, 329 F. Supp. 3d at 839 (emphases added). H.B.
2023 for the first time forbade non-fraudulent collection of
voted ballots. It was not a “parallel regulation.” It was a
fundamental change in Arizona law.
Second, our colleague repeats the potentially misleading
numbers and percentages of OOP voting recounted by the
district court. Our colleague writes:
Only 0.47 percent of all ballots cast in the
2012 general election (10,979 out of
2,323,579) were not counted because they
were cast out of the voter’s assigned precinct.
[Reagan, 329 F. Supp. 3d] at 872. In 2016,
this fell to 0.15 percent (3,970 out of
2,661,497). Id.
Diss. Op. at 122–123. Our colleague, like the district court,
see Reagan, 329 F. Supp. 3d at 872, fails to mention that, as
a percentage of all in-person ballots, OOP ballots increased
between 2012 and 2016.
Third, our colleague quotes from a sentence in a footnote
in the Supreme Court’s opinion in Gingles. Based on that
sentence, he insists that “substantial difficulty electing
representatives of their choice” is the governing standard for
the Section 2 results test in the case before us. Our colleague
writes:
[In Gingles], the Court observed that “[i]t is
obvious that unless minority group members
106 DNC V. HOBBS
experience substantial difficulty electing
representatives of their choice, they cannot
prove that a challenged electoral mechanism
impairs their ability ‘to elect.’” Gingles,
478 U.S. at 48 n.15 (quoting 52 U.S.C.
§ 10301(b)) (emphasis added).
Diss. Op. at 124 (emphasis in original). He later writes:
Given the lack of any testimony in the record
indicating that the ballot-collection policy
would result in minority voters
‘experienc[ing] substantial difficulty electing
representatives of their choice,’ Gingles,
478 U.S. at 48 n.15, the district court did not
clearly err[.]
Id. at 132 (emphasis added).
Our colleague fails to distinguish between a vote dilution
case and a vote denial case. As we noted above, a vote
dilution case is one in which multimember electoral districts
have been formed, or in which district lines have been drawn,
so as to dilute and thereby diminish the effectiveness of
minority votes. Vote denial cases are all other cases,
including cases in which voters are prevented from voting or
in which votes are not counted. Gingles was a vote dilution
case, and the case before us is a vote denial case. Our
colleague fails to quote the immediately preceding sentence
in the Gingles footnote, which makes clear that the Court was
addressing vote dilution cases. The Court wrote, “In
recognizing that some Senate Report factors are more
important to multimember district vote dilution claims than
DNC V. HOBBS 107
others, the Court effectuates the intent of Congress.” Gingles,
478 U.S. at 48 n.15 (emphasis added).
The standard in a vote denial case is different, as
recognized by DOJ in its amicus brief in this case, and in
League of Women Voters where the Fourth Circuit struck
down a state statute that would have prevented the counting
of OOP ballots in North Carolina without inquiring into
whether the number of affected ballots was likely to affect
election outcomes. See 769 F.3d at 248–49. As we noted
above, there may be a de minimis number in vote denial cases
challenging facially neutral policies or law, but the 3,709
OOP ballots in our case is above any such de minimis
number.
Citing our en banc decision in Gonzalez, our colleague
contends that our case law does not differentiate between vote
denial and vote dilution cases. But the very language from
Gonzalez that he quotes belies his contention. We wrote in
text:
[A] § 2 challenge “based purely on a showing
of some relevant statistical disparity between
minorities and whites,” without any evidence
that the challenged voting qualification causes
that disparity, will be rejected.
Gonzalez, 677 F.3d at 405. We then appended a footnote,
upon which our colleague relies:
This approach applies both to claims of vote
denial and of vote dilution. [Smith v. Salt
River Project Agric. Improvement & Power
108 DNC V. HOBBS
Dist., 109 F.3d 586,] 596 n.8 [(9th Cir.
1997)].
Id. at 405 n.32. The quoted language makes the obvious
point that in both vote denial and vote dilution cases, we
require evidence of a causal relation between a challenged
voting qualification and any claimed statistical disparity
between minority and white voters. However, this language
does not tell us that the predicate disparity, and its effect, are
the same in vote denial and vote dilution cases.
B. Response to the Second Dissent
Our second dissenting colleague, Judge Bybee, writes “to
make a simple point: The Arizona rules challenged here are
part of an ‘electoral process that is necessarily structured to
maintain the integrity of the democratic system.’” Diss. Op.
at 142 (quoting Burdick v. Takushi, 504 U.S. 428, 441
(1992)). We respectfully disagree. There is nothing in
Arizona’s policy of discarding OOP votes or about H.B. 2023
that is necessary “to maintain the integrity” of Arizona’s
democratic system.
Our colleague writes, further, “Parties of all stripes should
have an equal interest in rules that are both fair on their face
and fairly administered.” Id. at 144. Our colleague
misunderstands the purpose of the VRA’s results test of
Section 2. The results test looks past the facial fairness of a
law to its actual results.
We take these two points in turn.
DNC V. HOBBS 109
1. Integrity of Arizona’s Democratic System
First, our colleague uses his “simple point” to justify
Arizona’s OOP policy and H.B. 2023 on the ground that they
are necessary to protect the integrity of Arizona’s system.
Our colleague argues that eliminating Arizona’s OOP
policy will “lower[] the cost to voters of determining where
they are supposed to vote, but only as to presidential, U.S.
Senate, and statewide races,” and will have “its own
consequences.” Id. at 151, 153. To illustrate those
consequences, our colleague imagines a voter from Tuscon
who votes in Phoenix. Based on his imagined voter, he posits
“two predictable ways” in which future elections in Arizona
will be “skew[ed]” if OOP votes are counted for the elections
in which the voter is entitled to vote. Id. at 152. Because his
imagined voter cares only about national elections, that voter
“may vote with impunity in the wrong precinct.” Id. at 152.
This will result, first, in “overvalu[ing]” national elections,
and, second, in “undervalu[ing]” local elections. Id.
Our colleague speculates that Arizona’s OOP policy will
result in voters either finding the right precinct, or voting by
mail. He writes:
Under Arizona’s current OOP rule, a voter,
having gone to the trouble of going to a
precinct to vote in person and suffering the
indignity of having to fill out a provisional
ballot, is less likely to make the same mistake
next year. A voter who has had a ballot
disqualified is more likely to figure out the
correct precinct next time—or, better yet, sign
up for the convenience of early voting, a
110 DNC V. HOBBS
measure that avoids the conundrum of OOP
altogether.
Id. at 155.
Our colleague’s speculation leads him to predict that
Arizona’s OOP policy will lead to increased in-precinct
voting. There is nothing in the record that remotely supports
our colleague’s predicted consequences. Instead, the record
clearly shows the opposite. Arizona’s OOP policy has been
in place since at least 1970. Reagan, 329 F. Supp. 3d at 840.
The record shows that, despite its long-standing policy,
Arizona has consistently had by far the highest rate of OOP
voting of any State—in 2012, eleven times greater than the
second-place State. See Figure 6, supra at 13; see also
Rodden at 26 (describing OOP voting as a “persistent
problem” in Arizona).
Contrary to our colleague’s speculation, OOP voters are
unlikely ever to discover the “indignity” of having their
provisional ballots discarded. Our colleague quotes from an
Arizona statute requiring county recorders to establish a
“method” by which a voter casting a provisional ballot be
notified that his or ballot was not counted, and giving a
reason why it was not counted. Diss. Op. at 155 n.9.
However, there is nothing in the record showing that county
recorders have in fact established, or followed, such a
“method.” Instead, there was uncontradicted testimony in the
district court by OOP voters that they were not directed to
their proper polling place and were never told that their vote
would not be counted if cast out of precinct. See Reagan,
329 F. Supp. 3d at 858 (finding that poll workers neither
directed OOP voters to the correct precinct nor told voters
that OOP ballots would be discarded).
DNC V. HOBBS 111
The persistence of OOP voting is unsurprising given the
actions of Arizona. Arizona changes polling places with
extraordinary frequency, and often locates them in
inconvenient and misleading places. This produces a high
rate of OOP voting, particularly in urban areas and
particularly for voters with high rates of residential mobility.
The uncontested result is that minority voters cast OOP votes
twice as often as white voters.
Our colleague further argues that H.B. 2023 is an
appropriate measure to protect against voter fraud. He begins
by pointing out that many States forbid third-party ballot
collection. Diss. Op. at 158–160. But a simple numerical
comparison with other states fails to take into account, as the
VRA says we must, the particular geography, ethnic patterns,
and long history of third-party ballot collection in Arizona.
See Gingles, 478 U.S. at 78 (a Section 2 analysis requires “a
blend of history and an intensely local appraisal”). Evidence
in the record shows that third-party ballot collection has long
had a unique role in Arizona, given the large numbers of
Hispanic and American Indian voters who have unreliable or
non-existent in-home mail service, who have unreliable
means of transportation, who live long distances from polling
places, and who have long-standing cultural traditions of
ballot collection. Evidence in the record shows that Arizona
has never, in its long history of third-party ballot collection,
found a single case of fraud.
Our colleague also argues that Arizona should not ignore
the recommendation of the report of the bipartisan
commission, Building Confidence in U.S. Elections (2005).
Diss. Op. at 161–164. This is a reasonable argument, but it
has limited force when applied to Arizona. Forbidding third-
party ballot collection protects against potential voter fraud.
112 DNC V. HOBBS
But such protection is not necessary, or even appropriate,
when there is a long history of third-party ballot collection
with no evidence, ever, of any fraud and such fraud is already
illegal under existing Arizona law. Such protection is
undesirable, even illegal, when a statute forbidding third-
party ballot collection produces a discriminatory result or is
enacted with discriminatory intent. The commission was
concerned with maintaining “confidence” in our election
system, as indicated by the title of its report. If there is a lack
of confidence in third-party ballot collection in Arizona, it is
due to the fraudulent, race-based campaign mounted by the
proponents of H.B. 2023.
Finally, our colleague points to third-party ballot
collection fraud perpetrated by a Republican political
operative in North Carolina. Id. at 164–166. Our colleague’s
argument ignores the different histories and political cultures
in Arizona and North Carolina, and puts to one side as
irrelevant the long and honorable history of third-party ballot
collection in Arizona. The argument also ignores the fact that
Arizona had long had statutes prohibiting fraudulent handling
of both unvoted and voted ballots by third parties, even
before the enactment of H.B. 2023. The actions of the North
Carolina Republican operative, if performed in Arizona,
would have been illegal under those statutes. H.B. 2023 does
not forbid fraudulent third-party ballot collection. Such fraud
is forbidden by other provisions of Arizona law. H.B. 2023
forbids non-fraudulent third-party ballot collection.
2. Rules that Are Fair on Their Face
Second, our colleague defends Arizona’s OOP policy and
H.B. 2023 as “rules that are . . . fair on their face.” Id. at 144.
The results test of Section 2 of the VRA is based on the
DNC V. HOBBS 113
understanding that laws that are “fair on their face” can, as in
this case, produce discriminatory results. Indeed, Congress
added the results test to the VRA precisely to address laws
that were fair on their face but whose result was unfair
discrimination.
Arizona’s OOP policy and H.B. 2023 both fail the results
test. The result of Arizona’s OOP policy is that twice as
many minority ballots as white ballots are thrown away.
Prior to the enactment of H.B. 2023, third-party ballot
collectors, acting in good faith, collected many thousands of
valid ballots cast by minority voters. White voters rarely
relied on third-party ballot collection. The result of H.B.
2023 is that many thousands of minority ballots will now not
be collected and counted, while white ballots will be largely
unaffected.
IV. Conclusion
We hold that Arizona’s OOP policy violates the results
test of Section 2. We hold that H.B. 2023 violates both the
results test and the intent test of Section 2. We hold that H.B.
2023 also violates the Fifteenth Amendment. We do not
reach Plaintiffs’ other constitutional challenges.
We reverse the judgment of the district court and remand
for further proceedings consistent with this opinion.
REVERSED and REMANDED.
114 DNC V. HOBBS
WATFORD, Circuit Judge, concurring:
I join the court’s opinion to the extent it invalidates
Arizona’s out-of-precinct policy and H.B. 2023 under the
results test. I do not join the opinion’s discussion of the
intent test.
O’SCANNLAIN, Circuit Judge, with whom CLIFTON,
BYBEE, and CALLAHAN, Circuit Judges, join, dissenting:
We have been asked to decide whether two current
Arizona election practices violate the Voting Rights Act or
the First, Fourteenth, or Fifteenth Amendments to the United
States Constitution.1 Based on the record before us and
1
Section 2 of the Voting Rights Act prohibits a State from adopting
an election practice that “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).
The First Amendment to the United States Constitution provides in
relevant part: “Congress shall make no law . . . abridging . . . the right of
the people peaceably to assemble.” U.S. Const. amend. I.
The Fourteenth Amendment guarantees: “No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV.
The Fifteenth Amendment ensures that the right “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.” U.S. Const. amend. XV.
DNC V. HOBBS 115
relevant Supreme Court and Ninth Circuit precedent, the
answer to such question is clear: they do not. The majority,
however, draws factual inferences that the evidence cannot
support and misreads precedent along the way. In so doing,
it impermissibly strikes down Arizona’s duly enacted policies
designed to enforce its precinct-based election system and to
regulate third-party collection of early ballots.
I respectfully dissent.
I
Given the abundant discussion by the district court and
the en banc majority, I offer only a brief summary of the
policies at issue here and discuss the district court’s factual
findings as pertinent to the analysis below.
A
Arizona offers voters several options: early mail ballot,
early in-person voting, and in-person Election Day voting.
Democratic Nat’l Comm. v. Reagan (“DNC”), 329 F. Supp.
3d 824, 838 (D. Ariz. 2018).
1
Since at least 1970, Arizona has required that in-person
voters “cast their ballots in their assigned precinct and has
enforced this system by counting only those ballots cast in the
correct precinct.” Id. at 840. A voter who arrives at a
precinct in which he or she is not listed on the register may
cast a provisional ballot, but Arizona will not count such
ballot if it determines that the voter does not live in the
116 DNC V. HOBBS
precinct in which he or she voted. Id. For shorthand, I refer
to this rule as Arizona’s “out-of-precinct” or “OOP” policy.
Most Arizona voters, however, do not vote in person on
Election Day. Id. at 845. Arizona law permits all registered
voters to vote early by mail or in person at an early voting
location in the 27 days before an election. Ariz. Rev. Stat.
§§ 16-121(A), 16-541(A), 16-542(D). All Arizona counties
operate at least one location for early in person voting. DNC,
329 F. Supp. 3d at 839. Rather than voting early in person,
any voter may instead request an early ballot to be delivered
to his or her mailbox on an election-by-election or permanent
basis. Id. In 2002, Arizona became the first state to make
available an online voter registration option, which also
permits voters to enroll in permanent early voting by mail.
Id. Voters who so enroll will be sent an early ballot no later
than the first day of the 27-day early voting period. Id.
Voters may return early ballots in person at any polling place,
vote center, or authorized office without waiting in line or
may return their early ballots by mail at no cost. Id. To be
counted, however, an early ballot must be received by
7:00 p.m. on Election Day. Id.
2
For years, Arizona has restricted who may handle early
ballots.2 Since 1992, Arizona has prohibited anyone but the
elector himself from possessing “that elector’s unvoted
absentee ballot.” 1991 Ariz. Legis. Serv. Ch. 310, § 22 (S.B.
2
The majority’s effort to deny history can easily be dismissed. Maj.
Op. 104–105. As Judge Bybee’s dissent ably recounts, not only Arizona
but 21 other states have restricted early balloting for years. Bybee, J. Diss.
Op. 157–158.
DNC V. HOBBS 117
1390) (West). In 2016, Arizona enacted a parallel regulation,
H.B. 2023 (the “ballot-collection” policy), concerning the
collection of early ballots.3 DNC, 329 F. Supp. 3d at 839.
Under the ballot-collection policy, only a “family member,”
“household member,” “caregiver,” “United States postal
service worker” or other person authorized to transmit mail,
or “election official” may return another voter’s completed
early ballot. Id. at 839–40 (citing Ariz. Rev. Stat. § 16-
1005(H)–(I)).
B
In April 2016, the Democratic National Committee, the
Democratic Senatorial Campaign Committee, and the
Arizona Democratic Party (together, “DNC”) sued the State
of Arizona to challenge the OOP policy and the ballot-
collection policy. The district court denied DNC’s motions
to enjoin preliminarily enforcement of both polices, and DNC
asked our court to issue injunctions pending appeal of such
denials. After expedited proceedings before three-judge and
en banc panels, our court denied the motion for an injunction
against the OOP policy but granted the parallel motion
against the ballot-collection policy. Feldman v. Ariz. Sec’y of
State’s Office, 840 F.3d 1165 (9th Cir. 2016) (en banc)
(mem.) (per curiam); Feldman v. Ariz. Sec’y of State’s Office
(Feldman III), 843 F.3d 366 (9th Cir. 2016) (en banc). The
Supreme Court, however, stayed our injunction against the
ballot-collection policy and the OOP and ballot-collection
policies functioned in usual fashion. Ariz. Sec’y of State’s
Office v. Feldman, 137 S. Ct. 446 (2016) (mem.).
3
While the majority refers to the legislation as “H.B. 2023,” I prefer
to call it the ballot-collection policy by which it is commonly known and
will do so throughout the dissent.
118 DNC V. HOBBS
In 2017, the district court proceeded to the merits of
DNC’s suit. In May 2018, after a ten-day bench trial, the
district court issued a decision supported by thorough
findings of fact and conclusions of law. DNC, 329 F. Supp.
3d at 832. The district court found that DNC failed to prove
any violation of the Voting Rights Act or the United States
Constitution and issued judgment in the state’s favor. Id.
at 882–83.
DNC timely appealed, and a three-judge panel of our
court affirmed the decision of the district court in its entirety.
Democratic Nat’l Comm. v. Reagan (“DNC”), 904 F.3d 686
(9th Cir. 2018), vacated by order granting rehearing en banc,
911 F.3d 942 (9th Cir. 2019) (mem.). But today, the en banc
panel majority reverses the decision of the district court and
holds that the OOP and ballot-collection policies violate § 2
of the Voting Rights Act and that the ballot-collection policy
was enacted with discriminatory intent in violation of the
Fifteenth Amendment.
II
The first mistake of the en banc majority is disregarding
the critical standard of review. Although the majority recites
the appropriate standard, it does not actually engage with it.4
Maj. Op. 8–9. The standard is not complex. We review de
novo the district court’s conclusions of law, but may review
4
As the majority admits, we review the district court’s “overall
finding of vote dilution” under § 2 of the Voting Rights Act only for clear
error. Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (emphasis added);
Maj. Op. 8–9. The majority quotes an elaboration of this standard by the
Supreme Court in Gingles. Maj. Op. 8–9. But the Court in Gingles
actually held that the district court’s ultimate finding was not clearly
erroneous. Gingles, 478 U.S. at 80.
DNC V. HOBBS 119
its findings of fact only for clear error. Navajo Nation v.
U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir. 2008) (en
banc).
The majority’s disregard of such standard and, thus, our
appellate role, infects its analysis of each of DNC’s claims.
The demanding clear error standard “plainly does not entitle
a reviewing court to reverse the finding of the trier of fact
simply because it is convinced that it would have decided the
case differently.” Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985). Rather, we may reverse a finding
only if, “although there is evidence to support it, [we are] left
with the definite and firm conviction that a mistake has been
committed.” Id. (quoting United States v. U. S. Gypsum Co.,
333 U.S. 364, 395 (1948)). To do otherwise “oversteps the
bounds of [our] duty under [Federal Rule of Civil Procedure]
52(a)” by “duplicat[ing] the role of the lower court.” Id.
at 573. As explained in Parts III and IV, I fail to see how on
the record before us one could be “left with a definite and
firm conviction” that the district court erred.
III
DNC first contends that Arizona’s policies violate § 2 of
the Voting Rights Act. A district court’s determination of
whether a challenged practice violates § 2 of the Voting
Rights Act is “intensely fact-based”: the court assesses the
“totality of the circumstances” and conducts “a ‘searching
practical evaluation of the past and present reality.’” Smith
v. Salt River Project Agric. Improvements & Power Dist.
(“Salt River”), 109 F.3d 586, 591 (9th Cir. 1997) (quoting
Thornburg v. Gingles, 478 U.S. 30, 79 (1986)). Thus,
“[d]eferring to the district court’s superior fact-finding
120 DNC V. HOBBS
capabilities, we review only for clear error its ultimate
finding of no § 2 violation.” Id. at 591 (emphasis added).
In relevant part, § 2 provides:
(a) No voting qualification or prerequisite to
voting or standard, practice, or procedure shall
be imposed or applied by any State . . . in a
manner which results in a denial or
abridgment of the right of any citizen of the
United States to vote on account of race or
color . . . .
(b) A violation of subsection (a) is established
if, based on the totality of circumstances, it is
shown that the political processes leading to
nomination or election in the State . . . 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 (emphasis added). “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.” Gingles,
478 U.S. at 47. To determine whether a practice violates § 2,
courts employ a two-step analysis. See Ohio Democratic
Party v. Husted, 834 F.3d 620, 637 (6th Cir. 2016); Veasey v.
Abbott, 830 F.3d 216, 244 (5th Cir. 2016); Frank v. Walker,
768 F.3d 744, 754–55 (7th Cir. 2014); League of Women
DNC V. HOBBS 121
Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir.
2014).
The first step is asking whether the practice provides
members of a protected class “less ‘opportunity’ than others
‘to participate in the political process and to elect
representatives of their choice.’” Chisom v. Roemer,
501 U.S. 380, 397 (1991) (alteration in original) (quoting
52 U.S.C. § 10301). In other words, the challenged practice
“must impose a discriminatory burden on members of a
protected class.” League of Women Voters, 769 F.3d at 240
(emphasis added). To prevail at step one, the plaintiff
therefore “must show a causal connection between the
challenged voting practice and [a] prohibited discriminatory
result.” Salt River, 109 F.3d at 595 (alteration in original)
(quoting Ortiz v. City of Phila. Office of City Comm’rs Voter
Registration Div., 28 F.3d 306, 312 (3d Cir. 1994)); see also
Ohio Democratic Party, 834 F.3d at 638. If a discriminatory
burden is established, then—and only then—do we consider
whether the burden is “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 (quoting Gingles,
478 U.S. at 47).
The majority agrees that this two-step analysis controls
but mistakenly applies it. According to the majority, DNC
has shown that the OOP policy and the ballot-collection
policy fail at both steps—and, presumably, that the district
court clearly erred in finding otherwise. Under an
appropriately deferential analysis, however, DNC cannot
prevail even at step one: it has simply failed to show that
either policy erects a discriminatory burden.
122 DNC V. HOBBS
A
As to the facially neutral OOP policy, DNC argues,
erroneously, that wholly discarding, rather than partially
counting, ballots that are cast out-of-precinct violates § 2 of
the Voting Rights Act because such policy imposes a
discriminatory burden on minority voters related to Arizona’s
history of discrimination. The district court, quite properly,
found that DNC failed to carry its burden at step one—that
the practice imposes a discriminatory burden on minority
voters—for two reasons. DNC, 329 F. Supp. 3d at 873.
1
First, the district court determined that DNC failed to
show “that the racial disparities in OOP voting are practically
significant enough to work a meaningful inequality in the
opportunities of minority voters as compared to non-minority
voters.” Id. Thus, it ruled that DNC failed to show that the
precinct-based system has a “disparate impact on the
opportunities of minority voters to elect their preferred
representatives.” Id. at 872. To the contrary, the district
court made the factual finding that out-of-precinct “ballots
represent . . . a small and ever-decreasing fraction of the
overall votes cast in any given election.” Id.
Furthermore, the district court determined that “the
burdens imposed by precinct-based voting . . . are not severe.
Precinct-based voting merely requires voters to locate and
travel to their assigned precincts, which are ordinary burdens
traditionally associated with voting.” Id. at 858. Indeed, the
numbers found by the district court support such conclusion.
Only 0.47 percent of all ballots cast in the 2012 general
election (10,979 out of 2,323,579) were not counted because
DNC V. HOBBS 123
they were cast out of the voter’s assigned precinct. Id. at 872.
In 2016, this fell to 0.15 percent (3,970 out of 2,661,497). Id.
And of those casting ballots in-person on Election Day,
approximately 99 percent of minority voters and 99.5 percent
of non-minority voters cast their ballots in their assigned
precincts. Id. Given that the overwhelming majority of all
voters complied with the precinct-based voting system during
the 2016 election, it is difficult to see how the district court’s
finding could be considered clearly erroneous. See also
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 198
(2008) (plurality opinion) (discussing “the usual burdens of
voting”). And it further ruled that DNC “offered no evidence
of a systemic or pervasive history of minority voters being
given misinformation regarding the locations of their
assigned precincts, while non-minority voters were given
correct information” to suggest that the burden of voting in
one’s assigned precinct is more significant for minority voters
than for non-minority voters. DNC, 329 F. Supp. 3d at 873.
As Judge Ikuta explained in her now-vacated majority
opinion for the three-judge panel:
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,” even
if the practice has a disproportionate impact
on minority voters.
DNC, 904 F.3d at 714 (citation omitted) (quoting Chisom,
501 U.S. at 397 n.24). The “bare statistic[s]” presented may
indeed show a disproportionate impact on minority voters,
124 DNC V. HOBBS
but we have held previously that such showing is not enough.
Salt River, 109 F.3d at 595 (“[A] bare statistical showing of
disproportionate impact on a racial minority does not satisfy
the § 2 ‘results’ inquiry.” (emphasis in original)). A court
must evaluate the burden imposed by the challenged voting
practice—not merely any statistical disparity that may be
shown. The Supreme Court’s interpretation of § 2 in Gingles
suggests the same. There, the Court observed that “[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.’” Gingles, 478 U.S. at 48 n.15
(emphasis added) (quoting 52 U.S.C. § 10301(b)).
Furthermore, because “[n]o state has exactly equal
registration rates, exactly equal turnout rates, and so on, at
every stage of its voting system,” it cannot be the case that
pointing to a mere statistical disparity related to a challenged
voting practice is sufficient to “dismantle” that practice.
Frank, 768 F.3d at 754; see also Salt River, 109 F.3d at 595.
The majority, however, contends that “the district court
discounted the disparate burden on the ground that there were
relatively few OOP ballots cast in relation to the total number
of ballots.” Maj. Op. 43. In the majority’s view, the district
court should have emphasized that the percentage of in-
person ballots that were cast out-of-precinct increased, thus
isolating the specific impact of the OOP policy amongst in-
person voters bound by the precinct-system requirements.
Contrary to the majority’s assertion, however, the legal
review at hand does not require that we isolate the specific
challenged practice in the manner it suggests. Rather, at step
one of the § 2 inquiry, we only consider whether minority
voters “experience substantial difficulty electing
DNC V. HOBBS 125
representatives of their choice,” Gingles, 478 U.S. at 48 n.15,
“based on the totality of circumstances,” 52 U.S.C.
§ 10301(b).5 Although the majority would like us to believe
that the increasing percentage of in-person ballots cast out-of-
precinct demonstrates that minorities are disparately
burdened by the challenged policy, the small number of
voters who chose to vote in-person and the even smaller
number of such voters who fail to do so in the correct precinct
demonstrate that any minimal burden imposed by the policy
does not deprive minority voters of equal opportunities to
elect representatives of their choice. A conclusion otherwise
could not be squared with our determination that a mere
statistical showing of disproportionate impact on racial
minorities does not satisfy the challenger’s burden. See Salt
River, 109 F.3d at 595. If such statistical impact is not
sufficient, it must perforce be the case that the crucial test is
5
The majority correctly asserts that Gingles was a vote dilution not
vote denial case. However, it incorrectly claims the standard in a vote
denial case is different and, without stating such standard, it simply
concludes that the 3,709 ballots cast out of precinct in the 2016 general
election in Arizona is more than any “de minimis number” below which
there is no Section 2 violation, without ever revealing what such minimum
threshold might be. Maj. Op. 107. The majority cites League of Women
Voters, a vote denial case, to reach this conclusion. See 769 F.3d at
248–49. Yet, in that case, the Fourth Circuit relies on Gingles throughout
to determine that the same analysis applies to vote denial and vote dilution
cases. Id. at 238–40. Earlier in its opinion, the majority itself uses
Gingles as the standard for analyzing a § 2 violation in a vote denial case.
Maj. Op. 37. The distinction the majority attempts to draw fails because,
contrary to what the majority implies, “a § 2 challenge based purely on a
showing of some relevant statistical disparity between minorities and
whites, without any evidence that the challenged voting qualification
causes that disparity, will be rejected,” Gonzalez v. Arizona, 677 F.3d 383,
495 (9th Cir. 2012) (internal quotation marks omitted), and “[t]his
approach applies both to claims of vote denial and vote dilution.” Id. at
495 n. 32.
126 DNC V. HOBBS
the extent to which the practice burdens minority voters as
opposed to non-minority voters. But the en banc majority
offers no explanation for how or why the burden of voting in
one’s assigned precinct is severe or beyond that of the
burdens traditionally associated with voting.
The majority argues that there may be a “de minimis
number” below which no § 2 violation has occurred.6 Maj.
Op. 44. But we know from our own precedent that “a bare
statistical showing of disproportionate impact on a racial
minority does not satisfy the § 2 . . . inquiry.” Salt River,
109 F.3d at 595 (emphasis in original). And Chisom makes
clear that § 2 “claims must allege an abridgment of the
opportunity to participate in the political process and to elect
representatives of one’s choice.” 501 U.S. at 398 (emphasis
in original). As such, the inquiry must require consideration
of both the scope of the burden imposed by the particular
policy—not merely how many voters are impacted by it—and
the difficulty of accessing the political process in its entirety.
Thus, it cannot be true, as the majority suggests, that
simply showing that some number of minority voters’ ballots
were not counted as a result of an individual policy satisfies
step one of the § 2 analysis for a facially neutral policy.
2
Second, the district court made the factual finding that
“Arizona’s policy to not count OOP ballots is not the cause
6
As Judge Ikuta explained, “an election rule requiring voters to
identify their correct precinct in order to have their ballots counted does
not constitute a ‘disenfranchisement’ of voters.” DNC, 904 F.3d at 730
n.33; see also id. at 724 n.27.
DNC V. HOBBS 127
of [any identified] disparities in OOP voting.” DNC, 329 F.
Supp. 3d at 872. According to the OOP policy that is
challenged by DNC, a ballot is not counted if it is cast outside
of the voter’s assigned precinct. And the district court
pointed to several factors that result in higher rates of out-of-
precinct voting among minorities. For example, the district
court found that “high rates of residential mobility are
associated with higher rates of OOP voting,” and minorities
are more likely to move more frequently. Id. at 857, 872.
Similarly, “rates of OOP voting are higher in neighborhoods
where renters make up a larger share of householders.” Id. at
857. The precinct-system may also pose special challenges
for Native American voters, because they may “lack standard
addresses” and there may be additional “confusion about the
voter’s correct polling place” where precinct assignments
may differ from assignments for tribal elections. Id. at 873.
“Additionally”, the district court found, Arizona’s “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.”
Id. at 858.
But the burden of complying with the precinct-based
system in the face of any such factors is plainly
distinguishable from the consequence imposed should a voter
fail to comply. Indeed, as the district court found, “there is
no evidence that it will be easier for voters to identify their
correct precincts if Arizona eliminated its prohibition on
counting OOP ballots.” Id. Although “the consequence of
voting OOP might make it more imperative for voters to
correctly identify their precincts,” id., such consequence does
not cause voters to cast their ballots out-of-precinct or make
it more burdensome for voters to cast their ballots in their
assigned precincts.
128 DNC V. HOBBS
The majority goes astray by failing to recognize the
distinction between the burden of complying and the
consequence of failing to do so. In fact, the majority
undercuts its own claim by citing the same host of reasons
identified by the district court as the reasons why a minority
voter is more likely to vote out-of-precinct. Maj Op. 14–19.
All the factors the majority seizes upon, however, stem from
the general requirement that a voter cast his or her ballot in
the assigned precinct—not the policy that enforces such
requirement. The importance of such distinction is made
clear by the relief that DNC seeks: DNC does not request that
Arizona be made to end its precinct-based system or to assign
its precincts differently, but instead requests that Arizona be
made to count those ballots that are not cast in compliance
with the OOP policy.7 Removing the enforcement policy,
however, would do nothing to minimize or to extinguish the
disparity that exists in out-of-precinct voting.
Consider another basic voting requirement: in order to
cast a ballot, a voter must register. If a person fails to
register, his or her vote will not count. Any discriminatory
result from such a policy would need to be addressed in a
7
The majority suggests that DNC challenges only “Arizona’s policy,
within that system, of entirely discarding OOP ballots” as opposed to
counting or partially counting them. Maj. Op. 78. But this is not a
compromise position: there is no difference between counting and
partially counting a ballot cast out-of-precinct. Counting an OOP ballot
would entail evaluating the ballot to determine on which issues the person
would have been qualified to vote in his or her assigned precinct and
discarding the person’s votes as to issues on which he or she would not
have been qualified to vote. Certainly, the majority isn’t suggesting that
a person would ever be allowed to vote on issues which he or she would
not have been eligible to vote even in the assigned precinct. It is difficult
to discern any other possible meaning for what the majority refers to as
entirely “counting” out-of-precinct ballots.
DNC V. HOBBS 129
challenge to that policy itself. For example, if minorities are
underrepresented as a segment of registered voters, perhaps
they could challenge some discriminatory aspect of the
registration system. But they surely could not prevail by
challenging simply the state’s enforcement of the registration
policy by refusing to count unregistered voters’ ballots.
Minorities in a jurisdiction may very well be
underrepresented as members of the registered electorate, but
the discrepancy between the protected class as a segment of
the general population and as a segment of the registered
voting population would not require that a state permit
unregistered voters to cast valid ballots on Election Day.
Similarly, the fact that a ballot cast by a voter outside of
his or her assigned precinct is discarded does not cause
minorities to vote out-of-precinct disproportionately. But
DNC does not challenge the general requirement that one
vote in his or her precinct or take issue with the assignment
of precinct locations—the very requirements that could lead
to a disproportionate impact. It may indeed be the case in a
precinct-based voting system that a state’s poor assignment
of districts, distribution of inadequate information about
voting requirements, or other factors have some material
effect on election practices such that minorities have less
opportunity to elect representatives of their choice as a result
of the system. But, in the words of the majority, DNC’s
challenge “assumes both [the] importance and [the] continued
existence” of “Arizona’s precinct-based system of voting.”
Maj. Op. 78. Instead, DNC challenges only Arizona’s
enforcement of such system. Thus, even if there were a
recognizable disparity in the opportunities of minority voters
voting out-of-precinct, it would nonetheless not be the result
of the policy at issue before us.
130 DNC V. HOBBS
3
I reject the suggestion implicit in the majority opinion that
any facially neutral policy which may result in some
statistical disparity is necessarily discriminatory under step
one of the § 2 inquiry. We have already held otherwise. Salt
River, 109 F.3d at 595. And the majority itself concedes that
“more than a de minimis number of minority voters must be
burdened before a Section 2 violation based on the results test
can be found.” Maj. Op. 44. Furthermore, I fail to see how
DNC—and the majority—can concede the importance and
continued existence of a precinct-based system, yet argue that
the enforcement mechanism designed to maintain such
system is impermissible.
Because DNC has failed to meet its burden under step one
of the Voting Rights Act § 2 inquiry—that the district court’s
findings were clearly erroneous—our analysis of its OOP
claim should end here.
B
As to the facially neutral ballot-collection policy, DNC
argues, erroneously, that it violates § 2 because there is
“extensive evidence” demonstrating that minority voters are
more likely to have used ballot-collection services and that
they would therefore be disproportionately burdened by
limitations on such services. Specifically, DNC relies on
anecdotal evidence that ballot collection has
disproportionately occurred in minority communities, that
minority voters were more likely to be without home mail
delivery or access to transportation, and that ballot-harvesting
efforts were disproportionately undertaken by the Democratic
Party in minority communities. And, DNC claims, such
DNC V. HOBBS 131
burden is caused by or linked to Arizona’s history of
discrimination.
The district court, quite properly, rejected such argument,
making the factual finding that DNC failed to establish at step
one that the ballot-collection policy imposed a discriminatory
burden on minority voters. DNC, 329 F. Supp. 3d at 866,
871. Once again, the question is whether such finding was
clearly erroneous. Salt River, 109 F.3d at 591.
1
The district court found broadly that the non-quantitative
evidence offered by DNC failed to show that the ballot-
collection policy denied minority voters of “meaningful
access to the political process.” DNC, 329 F. Supp. 3d
at 871. As Judge Ikuta observed, to determine whether the
challenged policy provides minority voters “less opportunity
to elect representatives of their choice, [we] must necessarily
consider the severity and breadth of the law’s impacts on the
protected class.” DNC, 904 F.3d at 717.
But no evidence of that impact has been offered. “In fact,
no individual voter testified that [the ballot-collection
policy’s] limitations on who may collect an early ballot
would make it significantly more difficult to vote.” DNC,
329 F. Supp. 3d at 871 (emphasis added). Anecdotal
evidence of how voters have chosen to vote in the past does
not establish that voters are unable to vote in other ways or
would be burdened by having to do so. The district court
simply found that “prior to the [ballot-collection policy’s]
enactment minorities generically were more likely than non-
minorities to return their early ballots with the assistance of
third parties,” id. at 870, but, once again, the disparate impact
132 DNC V. HOBBS
of a challenged policy on minority voters is insufficient to
establish a § 2 violation, see Salt River, 109 F.3d at 594–95.
The majority simply does not address the lack of evidence
as to whether minority voters have less opportunity than non-
minority voters now that ballot collection is more limited.
Instead, the majority answers the wrong question by pointing
to minority voters’ use of ballot collection in the past. The
majority offers no record-factual support for its conclusion
that the anecdotal evidence presented demonstrates that
compliance with the ballot-collection policy imposes a
disparate burden on minority voters—a conclusion that must
be reached in order to satisfy step one of the § 2 inquiry—let
alone evidence that the district court’s contrary finding was
“clearly erroneous.”
Given the lack of any testimony in the record indicating
that the ballot-collection policy would result in minority
voters “experienc[ing] substantial difficulty electing
representatives of their choice,” Gingles, 478 U.S. at 48 n.15,
the district court did not clearly err in finding that, “for some
voters, ballot collection is a preferred and more convenient
method of voting,” but a limitation on such practice “does not
deny minority voters meaningful access to the political
process.” DNC¸ 329 F. 3d Supp. at 871.
2
The district court further found that the ballot-collection
policy was unlikely to “cause a meaningful inequality in the
electoral opportunities of minorities” because only “a
relatively small number of voters have used ballot collection
services” in the past at all. DNC, 329 F. Supp. 3d at 870–71.
And, the district court noted, DNC “provided no quantitative
DNC V. HOBBS 133
or statistical evidence comparing the proportion that is
minority versus non-minority.” Id. at 866. “Without this
information,” the district court explained, “it becomes
difficult to compare the law’s impact on different
demographic populations and to determine whether the
disparities, if any, are meaningful.” Id. at 867. Thus, from
the record, we do not know either the extent to which voters
may be burdened by the ballot-collection policy or how many
minority voters may be so burdened.
Nonetheless, the district court considered circumstantial
and anecdotal evidence offered by DNC and determined that
“the vast majority of Arizonans, minority and non-minority
alike, vote without the assistance of third-parties who would
not fall within [the ballot-collection policy’s] exceptions.”
Id. at 871. DNC—and the majority—argue that such finding
is not supported by the record, but, given the lack of
quantitative or statistical evidence before us, it is difficult to
conclude that such finding is clearly erroneous. The district
court itself noted that it could not “speak in more specific or
precise terms” given the sparsity of the record. Id. at 870.
Drawing from anecdotal testimony, the district court
estimated that fewer than 10,000 voters used ballot-collection
services in any election. Id. at 845. Drawing even “the
unjustified inference that 100,000 early mail ballots were
collected” during the 2012 general election, the district court
found that such higher total would nonetheless be “relatively
few early voters” as compared to the 1.4 million early mail
ballots returned or 2.3 million total votes cast. Id. at 845.
The majority further argues that the district court erred in
“discounting the evidence of third-party ballot collection as
merely ‘circumstantial and anecdotal’” Maj. Op. 83. But the
district court did nothing of the sort. To the contrary, the
district court considered whether the ballot-collection policy
134 DNC V. HOBBS
violated § 2 by making these estimates—and even generous
estimates—from the anecdotal evidence offered. And the
district court’s subsequent conclusion that the limitation of
third-party ballot collection would impact only a “relatively
small number of voters,” id. at 870, is clearly plausible on
this record, see Bessemer City, 470 U.S. at 573.
The majority also argues that the total number of votes
affected is not the relevant inquiry; the proper test is whether
the number of ballots collected by third parties surpasses any
de minimis number. Maj. Op. 84. But we already know “that
a bare statistical showing” that an election practice has a
“disproportionate impact on a racial minority does not
satisfy” step one of the § 2 inquiry. Salt River, 109 F.3d at
595 (emphasis in original). And, even if such impact were
sufficient, the record offers no evidence from which the
district court could determine the extent of the discrepancy
between minority voters as a proportion of the entire
electorate versus minority voters as a proportion of those who
have voted using ballot-collection services in the past. DNC,
329 F. Supp. 3d at 866–67.
3
As Judge Bybee keenly observed in a previous iteration
of this case (and indeed in his dissent in this case), “[t]here is
no constitutional or federal statutory right to vote by absentee
ballot.” Feldman III, 843 F.3d at 414 (Bybee, J., dissenting)
(citing McDonald v. Bd. of Election Comm’rs of Chi.,
394 U.S. 802, 807–08 (1969)); accord Bybee, J. Diss.
Op. 156. Both today and in the past, Arizona has chosen to
provide a wide range of options to voters. But Arizona’s
previous decision to permit a particular mechanism of voting
does not preclude Arizona from modifying its election system
DNC V. HOBBS 135
to limit such mechanism in the future so long as such
modification is made in a constitutional manner. And, in fact,
Arizona’s modification here was made in compliance with
“the recommendation of the bipartisan Commission on
Federal Election Reform.” DNC, 329 F. Supp. 3d at 855.
Without any evidence in the record of the severity and
breadth of the burden imposed by this change to the ballot-
collection policy, we cannot be “left with the definite and
firm conviction” that the district court erred in finding that
DNC failed to show that the policy violated § 2. See
Bessemer City, 470 U.S. at 573; see also Salt River, 109 F.3d
at 591.
C
Because I disagree with the majority’s conclusion that
DNC has satisfied its burden at step one of the § 2 Voting
Rights Act inquiry, I would not reach step two. I therefore do
not address the majority’s consideration of the so-called
“Senate Factors” in determining whether the 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,
769 F.3d at 240 (quoting Gingles, 478 U.S. at 47). These
factors—and the majority’s lengthy history lesson on past
election abuses in Arizona—simply have no bearing on this
case. Indeed, pages 47 to 81 of the majority’s opinion may
properly be ignored as irrelevant.
IV
DNC also contends that the ballot-collection policy
violates the Fifteenth Amendment to the United States
136 DNC V. HOBBS
Constitution.8 To succeed on a claim of discriminatory intent
under the Fifteenth Amendment, the challenger must
demonstrate that the 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.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279
(1979). Because discriminatory intent “is a pure question of
fact,” we again review only for clear error. Pullman-
Standard v. Swint, 456 U.S. 273, 287–88 (1982).
“Determining whether invidious discriminatory purpose was
a motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.” Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 266 (1977).
The district court concluded that the ballot-collection
policy did not violate the Fifteenth Amendment because it
made the factual finding that the legislature “was not
motivated by a desire to suppress minority voters,” although
“some individual legislators and proponents of limitations on
ballot collection harbored partisan motives” that “did not
permeate the entire legislative process.” DNC, 329 F. Supp.
3d at 879, 882 (emphasis added). Instead, “[t]he legislature
was motivated by . . . a sincere belief that mail-in ballots
lacked adequate prophylactic safeguards as compared to in-
person voting.” Id. at 882. In analyzing DNC’s appeal from
such finding, the majority, once again, completely ignores our
demanding standard of review and instead conducts its own
8
The Fifteenth Amendment authorizes Congress to enforce its
guarantee that the right “to vote shall not be denied or abridged . . . by
appropriate legislation.” U.S. Const. amend. XV. Section 2 of the Voting
Rights Act is such legislation. Shelby Cty. v. Holder, 570 U.S. 529, 536
(2013).
DNC V. HOBBS 137
de novo review. Maj. Op. 93. Our duty is only to consider
whether the district court clearly erred in its finding that the
ballot-collection policy was not enacted with discriminatory
intent. See Bessemer City, 470 U.S. at 573. And “to 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 & Elec. Motors, Inc.
v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
The majority therefore fails to offer any basis—let alone
a convincing one—for the conclusion that it must reach in
order to reverse the decision of the district court: that the
district court committed clear error in its factual findings.
Given the failure of the majority to conduct its review in the
proper manner, I see no reason to engage in a line-by-line
debate with its flawed analysis. Rather, it is enough to note
two critical errors made by the majority in ignoring the
district court’s determinations that while some legislators
were motivated by partisan concerns, the legislature as a body
was motivated by a desire to enact prophylactic measures to
prevent voter fraud.
A
First, the majority fails to distinguish between racial
motives and partisan motives. Even when “racial
identification is highly correlated with political affiliation,”
a party challenging a legislative action nonetheless must show
that racial motives were a motivating factor behind the
challenged policy. Cooper v. Harris, 137 S. Ct. 1455, 1473
(2017) (quoting Easley v. Cromartie, 532 U.S. 234, 243
(2001)). Nonetheless, the majority suggests that a legislator
motivated by partisan interest to enact a law that
138 DNC V. HOBBS
disproportionately impacts minorities must necessarily have
acted with racially discriminatory intent as well. For
example, the district court noted that Arizona State Senator
Don Shooter was, “in part motivated by a desire to eliminate
what had become an effective Democratic [Get Out The
Vote] strategy.” DNC, 329 F. Supp. 3d at 879. The majority
simply concludes that such finding shows racially
discriminatory intent as a motivating factor. But the
majority’s unsupported inference does not satisfy the required
showing. And the majority fails to cite any evidence
demonstrating that the district court’s finding to the contrary
was not “plausible in light of the record viewed in its
entirety.” Bessemer City, 470 U.S. at 574.
B
Second, in defiance of Supreme Court precedent to the
contrary, the majority assumes that a legislature’s stated
desire to prevent voter fraud must be pretextual when there is
no direct evidence of voter fraud in the legislative record. In
Crawford, the Court rejected the argument that actual
evidence of voter fraud was needed to justify the State’s
decision to enact prophylactic measures to prevent such
fraud. Crawford, 553 U.S. at 195–96 . There, the Court
upheld an Indiana statute requiring in-person voters to present
government-issued photo identification in the face of a
constitutional challenge. Id. at 185. Although “[t]he record
contain[ed] no evidence of [voter] fraud actually occurring in
Indiana at any time in its history,” the Supreme Court
nonetheless determined that the State had a legitimate and
important interest “in counting only the votes of eligible
voters.” Id. at 194, 196; see also id. at 195 nn.11–13 (citing
“fragrant examples of” voter fraud throughout history and in
recent years). Given its interest in addressing its valid
DNC V. HOBBS 139
concerns of voter fraud, Arizona was free to enact
prophylactic measures even though no evidence of actual
voter fraud was before the legislature. Yet the majority does
not even mention Crawford, let alone grapple with its
consequences on this case.
And because no evidence of actual voter fraud is required
to justify an anti-fraud prophylactic measure, the majority’s
reasoning quickly collapses. The majority cites Senator
Shooter’s “false and race-based allegations” and the “LaFaro
video,” which the district court explained “showed
surveillance footage of a man of apparent Hispanic heritage
appearing to deliver early ballots” and “contained a narration
of [i]nnuendos of illegality . . . [and] racially tinged and
inaccurate commentary by . . . LaFaro.” DNC, 329 F. Supp.
3d at 876 (second, third, and fourth alterations in original).
The majority contends that although “some members of the
legislature who voted for H.B. 2023 had a sincere, though
mistaken, non-race-based belief that there had been fraud in
third-party ballot collection, and that the problem needed to
be addressed,” a discriminatory purpose may be attributable
to all of them as a matter of law because any sincere belief
was “created by Senator Shooter’s false allegations and the
‘racially tinged’ LaFaro video.” Maj. Op. 99. The majority
claims that these legislators were used as “cat’s paws” to
“serve the discriminatory purposes of Senator Shooter,
Republican Chair LaFaro, and their allies.” Maj. Op. 100.
Yet, the majority’s reliance on such employment
discrimination doctrine is misplaced because, unlike
employers whose decision may be tainted by the
discriminatory motives of a supervisor, each legislator is an
independent actor, and bias of some cannot be attributed to all
members. The very fact that some members had a sincere
belief that voter fraud needed to be addressed is enough to
140 DNC V. HOBBS
rebut the majority’s conclusion. To the contrary, the
underlying allegations of voter fraud did not need to be true
in order to justify the “legitimacy or importance of the State’s
interest in counting only the votes of eligible voters.”
Crawford, 553 U.S. at 196. And the majority provides no
support for its inference of pretext where there is a sincere
and legitimate interest in addressing a valid concern. Maj.
Op. at 97–100. Instead, the majority accepts the district
court’s finding that some legislators “had a sincere, non-race-
based belief that there was fraud” that needed to be
addressed. Nevertheless, unable to locate any discriminatory
purpose, it simply attributes one to them using the
inapplicable “cat’s paw doctrine.” Maj. Op. 99. Such
argument demonstrates the extraordinary leap in logic the
majority must make in order to justify its conclusion.
Let me restate the obvious: we may reverse the district
court’s intensely factual determination as to discriminatory
intent only if we determine that such finding was clearly
erroneous. Thus, even if the majority disagrees with the
district court’s finding, it must demonstrate that the evidence
was not “plausible in light of the record viewed in its
entirety.” Bessemer City, 470 U.S. at 574. Perhaps if the
majority had reminded itself of our appellate standard, it
would not have simply re-weighed the same evidence
considered by the district court to arrive at its own findings
on appeal.
V
The district court properly determined that neither
Arizona’s out-of-precinct policy nor its ballot-collection
policy violates § 2 of the Voting Rights Act and the Fifteenth
DNC V. HOBBS 141
Amendment to the Constitution.9 In concluding otherwise,
the majority misperceives the inquiry before us and fails to
narrow the scope of its review, instead insisting on acting as
a de novo trial court. That, of course, is not our role.
I would therefore affirm the judgment of the district court
and must respectfully dissent from the majority opinion.
BYBEE, Circuit Judge, with whom O’SCANNLAIN,
CLIFTON, and CALLAHAN, Circuit Judges, join,
dissenting:
The right to vote is the most fundamental of our political
rights and the basis for our representative democracy. “No
right is more precious” because it is a meta-right: it is the
means by which we select “those who make the laws under
which, as good citizens, we must live.” Wesberry v. Sanders,
376 U.S. 1, 17 (1964). “Other rights, even the most basic, are
illusory if the right to vote is undermined.” Id. Almost as
fundamental as the right to vote is the need for the electorate
to have confidence in the rules by which elections are
conducted.
9
Because the majority concludes that the OOP policy and the ballot-
collection policy violate § 2 of the Voting Rights Act and the Fifteenth
Amendment to the United States Constitution, it does not reach DNC’s
claim that such policies also violate the First and Fourteenth Amendments
to the United States Constitution. I will not belabor such claims here; for
these purposes, it is sufficient to say that—for many of the reasons and
based on much of the evidence cited above—I would also conclude that
neither practice violates the First and Fourteenth Amendments.
142 DNC V. HOBBS
I write separately to make a simple point: The Arizona
rules challenged here are part of an “electoral process that is
necessarily structured to maintain the integrity of the
democratic system.” Burdick v. Takushi, 504 U.S. 428, 441
(1992).1 The Constitution entrusts the “Times, Places and
Manner of holding Elections” to state legislatures, subject to
laws enacted by Congress to “make or alter such
Regulations.” U.S. Const. art. I, § 4, cl. 1. “‘Times, Places,
and Manner,’ . . . are ‘comprehensive words,’ which
‘embrace authority to provide a complete code for . . .
elections.’” Arizona v. Inter Tribal Council of Ariz., Inc.,
570 U.S. 1, 8–9 (2013) (quoting Smiley v. Holm, 285 U.S.
355, 366 (1932)); see Rucho v. Common Cause, 139 S. Ct.
2484, 2495 (2019).
“[A]s 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.” To achieve these
necessary objectives, States have enacted
comprehensive and sometimes complex
election codes. Each provision of these
schemes, whether it governs the registration
and qualifications of voters, the selection and
eligibility of candidates, or the voting process
itself, inevitably affects—at least in some
degree—the individual’s right to vote and his
right to associate with others for political
ends. Nevertheless, the State’s important
1
I join in full Judge O’Scannlain’s dissent. I write separately to place
the majority’s decision today in context of the American democratic
tradition.
DNC V. HOBBS 143
regulatory interests are generally sufficient to
justify reasonable, nondiscriminatory
restrictions.
Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (citation
omitted) (quoting Storer v. Brown, 415 U.S. 724, 730
(1974)).
Time, place, and manner restrictions are fundamentally
differently from provisions that affect the “Qualifications
requisite for Electors,” U.S. Const. art. I, § 2, cl. 1, and state
apportionments “according to their respective Numbers,” id.
art. I, § 2, cl. 3. The Constitution restricts with exactness the
qualifications states may require of their voters. See id.
amend. XV, § 1 (“race, color, or previous condition of
servitude”); amend. XIX (sex); amend. XXIV (“failure to pay
any poll tax or other tax”); amend. XXVI (those “eighteen
years of age or older, . . . on account of age”); Kramer v.
Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969) (property
ownership). Similarly, the constitutional imperative for one
person, one vote demands that apportionment be subject to
precision approaching “absolute population equality,”
Karcher v. Daggett, 462 U.S. 725, 732 (1983), “as nearly as
practicable,” Kirkpatrick v. Preisler, 394 U.S. 526, 531
(1969).
Time, place, and manner restrictions stand on different
footing from status-based restraints on vote qualifications and
legislative malapportionment. State requirements respecting
when and where we vote and how ballots will be counted are
“generally-applicable and evenhanded restrictions that protect
the integrity and reliability of the electoral process itself.”
Anderson, 460 U.S. at 788 n.9. By contrast, for example,
“redistricting differs from other kinds of state decisionmaking
144 DNC V. HOBBS
in that the legislature always is aware of race when it draws
district lines, just as it is aware of age, economic status,
religions and political persuasion, and a variety of other
demographic factors.” Shaw v. Reno, 509 U.S. 630, 646
(1993). Time, place, and manner restrictions are the rules of
the game, announced in advance, so that all voters will know
what they must do. Parties of all stripes should have an equal
interest in rules that are both fair on their face and fairly
administered.
Two such rules are challenged here: the rule about how
Arizona will count out-of-precinct votes (OOP) and the rule
about who may file another person’s absentee ballot (H.B.
2023). As rules of general applicability, they apply to all
voters, without “account of race or color.” 52 U.S.C.
§ 10301(a).2 Rather than simply recognizing that Arizona has
enacted neutral, color-blind rules, the majority has embraced
the premise that § 2 of the VRA is violated when any
minority voter appears to be adversely affected by Arizona’s
election laws. Although the majority abjures this premise for
now, claiming that it does “not need to go so far” as equating
“the case of an individually targeted single minority voter
who is denied the right to vote and the case where a facially
neutral policy affects a single voter,” Maj. Op. at 45, its
analysis necessarily rests on that premise. The majority has
2
In relevant part, § 2 of the Voting Rights Act provides that “[n]o
voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State . . . 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). A
violation of § 2(a) may be shown “based on the totality of the
circumstances . . . [if] the political processes leading to nomination or
election in the State . . . are not equally open to participation by members
of a class of citizens [on account of race or color].” Id. § 10301(b).
 DNC V. HOBBS 145
no limiting principle for identifying a de minimis effect in a
facially neutral time, place, or manner rule. The premise
finds its clearest expression in the Fourth Circuit’s opinion in
League of Women Voters of N.C. v. North Carolina, 769 F.3d
224, 244 (4th Cir. 2014) (emphasis added): “[W]hat matters
for purposes of Section 2 is not how many minority voters are
being denied equal electoral opportunities but simply that
‘any’ minority voter is being denied equal electoral
opportunities.” See Maj. Op. at 41–42, 45–46, 107 (relying
on League of Women Voters). Such a premise insists on a
precision that we have never demanded before.
By contrast, the Supreme Court explained that following
City of Mobile v. Bolden, 446 U.S. 55 (1980), “Congress
substantially revised § 2 to make clear that a violation could
be proved by showing discriminatory effect alone and to
establish as the relevant legal standard the ‘results test,’
applied . . . in White v. Regester, 412 U.S. 755 (1973).”
Thornburg v. Gingles, 478 U.S. 30, 35 (1986). Yet in White,
the Court made clear that it “did not hold . . . that any
deviations from absolute equality, however small, must be
justified to the satisfaction of the judiciary to avoid
invalidation under the Equal Protection Clause.” 412 U.S. at
763–64. Rather, the Court recognized that any rule in an
election scheme might suffer “relatively minor population
deviations . . . . ‘based on legitimate considerations incident
to the effectuation of a rational state policy.’” Id. at 764
(quoting Reynolds v. Sims, 377 U.S. 533, 579 (1964)).
A “rational state policy” surely includes the need for a
consistent, neutral set of time, place, and manner rules. The
majority’s reading of the Voting Rights Act turns § 2 into a
“one-minority-vote-veto rule” that may undo any number of
time, place, and manner rules. It is entirely results-bound, so
146 DNC V. HOBBS
much so that under the majority’s reading of the Voting
Rights Act, the same rules the majority strikes down in
Arizona may be perfectly valid in every other state, even
states within our circuit. It all depends on the numbers.
Indeed, so diaphonous is the majority’s holding, that it may
be a temporary rule for Arizona. If Arizona were to reenact
these provisions again in, say, 2024, the numbers might come
out differently and the OOP and ballot collection rules would
be lawful once again.
The two Arizona rules at issue here—OOP and H.B.
2023—are rules of general applicability, just like the rules
governing voting on the day of the election, registering with
the Secretary of State, and bringing identification with you.
Such “‘evenhanded restrictions that protect the integrity and
reliability of the electoral process itself’ are not invidious.”
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189–90
(2008) (plurality opinion) (quoting Anderson, 460 U.S. at 788
n.9). Both rules the majority strikes down today have widely-
held, well-recognized—even distinguished—pedigrees. As
I show in Part I, the OOP is a long-standing rule that remains
in place in a majority of American jurisdictions. The rule the
majority prefers is a minority rule in the United States and,
more importantly, disregards Arizona’s interest in
encouraging voting in local elections and, in application, may
actually disadvantage minority voters. In Part II, I
demonstrate that, although H.B. 2023 is of more recent
vintage, similar rules are in place in other American
jurisdictions, and H.R. 2023 follows carefully the
recommendation of a bi-partisan commission on the integrity
of American elections.
DNC V. HOBBS 147
I
It has long been a feature of American democracy that, on
election day, voters must vote in person at an assigned polling
venue—an election precinct.
[I]t is the well established practice in nearly
every state to divide the county or city into a
number of geographical districts for the
purpose of holding elections. Each elector is
required to vote at the polling place of his
own precinct, which by custom is ordinarily
located within the precinct, and, in cities,
within a few blocks of his residence.
Joseph P. Harris, Election Administration in the United States
206–07 (1934). Like most American jurisdictions, Arizona’s
election rules require a non-absentee voter’s personal
presence at the polling place. Ariz. Rev. Stat. § 16-411(A)
(“The broad of supervisors of each county . . . shall establish
a convenient number of election precincts in the county and
define the boundaries of the precincts.”). The reasons for
such a venue rule 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
officials to monitor votes and prevent election
148 DNC V. HOBBS
fraud; and generally puts polling places in
closer proximity to voter residences.
Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565,
569 (6th Cir. 2004).3 Precincts help to secure the orderly
administration of elections, which then assures all voters of
the integrity of the election.
A
Arizona’s out of precinct rule (OOP) is a standard feature
of American democracy. Under Arizona’s election code,
3
“One of the major voting innovations in certain states was the
increase in the number of polling places.” Robert J. Dinkin, Voting in
Revolutionary America: A Study of Elections in the Original Thirteen
States, 1776–1789, at 96 (1982). Among the states, New York led the
way, “enacting a law in 1778 which stated that all future elections should
be held ‘not by counties but by boroughs, towns, manors, districts, and
precincts.’” Id. at 97 (quoting Laws of New York, sess. 1, chap. 16
(1778)). In early America, polling places were located where the people
were:
voting . . . in barns, private homes, country stores, and
churches—almost anything that could separate voters
from the election officials and the ballot boxes they
tended. On the frontier, where buildings were even
harder to find, votes were sometimes cast in sodhouse
saloons, sutler stores near army forts, the front porches
of adobe houses, and temporary lean-tos thrown
together at desolate desert crossroads. In the larger
cities, fire stations, warehouses, and livery stables were
commonly used. One of the most common venues was
liquor establishments. . . . Such an arrangement made
an election noisy and, sometimes, violent.
Richard Franklin Bensel, The American Ballot Box in the Mid-Nineteenth
Century 9 (2004).
DNC V. HOBBS 149
“[n]o person shall be permitted to vote unless such person’s
name appears as a qualified elector in both the general county
register and in the precinct register.” Ariz. Rev. Stat. § 16-
122. The election code provides extensive instructions for
electors who have changed their residence or whose name
does not appear on the precinct register; if there is any
question of the elector’s eligibility to vote in that precinct,
Arizona authorizes the filing of a provisional ballot. See, e.g.,
Ariz. Rev. Stat. §§ 16-135, 16-583, 16-584, 16-592.
There is nothing unusual about Arizona’s OOP rule.4
Although there are variations in the way the rule is
formulated, by my count, twenty-six states, the District of
Columbia, and three U.S. territories disqualify ballots cast in
the wrong precinct.5 These states represent every region of
the country: The Northeast (Connecticut, Vermont), the mid-
Atlantic (Delaware, District of Columbia, West Virginia), the
4
For many years, a voter was not even permitted to cast a provisional
ballot in a precinct other than her own. See Harris, Election
Administration in the United States, at 287–88. The Help America Vote
Act (HAVA) now requires states to permit voters to cast a provisional
ballot. 52 U.S.C. § 21082(a). HAVA, however, does not affect a state’s
rules about how to process a provisional ballot. It does provide that states
must create a toll-free number that “any individual who casts a provisional
ballot may access to discover whether the vote of that individual was
counted, and, if the vote was not counted, the reasons that the vote was not
counted.” 52 U.S.C. § 21082(a)(5)(B); see Blackwell, 387 F.3d at 576
(“HAVA is quintessentially about being able to cast a provisional
ballot. . . . [B]ut the ultimate legality of the vote cast provisionally is
generally a matter of state law.”).
5
I have listed all fifty states, the District of Columbia, and U.S.
territories, with relevant citations to their treatment of out of precinct
votes, in Appendix A. In Appendix B, I have categorized the jurisdictions
by rule.
150 DNC V. HOBBS
South (Alabama, Florida, Kentucky, Mississippi, South
Carolina, Tennessee, Virginia, Virgin Islands), the mid-West
(Illinois, Indiana, Iowa, Michigan, Missouri, Nebraska, South
Dakota, Wisconsin), the Southwest (Arizona, Oklahoma,
Texas), the Mountain States (Montana, Wyoming), and the
West (American Samoa, Hawaii, Nevada, Northern Mariana
Islands). Twenty states and two territories will count out of
precinct ballots, although the states are not uniform in what
they will count.6 They also represent a broad spectrum of the
country: The Northeast (Maine, Massachusetts, New York,
Rhode Island), the mid-Atlantic (Maryland, New Jersey,
Pennsylvania), the South (Arkansas, Louisiana, North
Carolina, Georgia, Puerto Rico), the mid-West (Ohio,
Kansas), the Southwest (New Mexico), the Mountain States
(Colorado, Utah), and the West (Alaska, California, Guam,
Oregon, Washington).7
Nowhere in its discussion of the “totality of the
circumstances” has the majority considered that Arizona’s
OOP provision is a widely held time, place, or manner rule.
It is not a redistricting plan, see Cooper v. Harris, 137 S. Ct.
1455 (2017); League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006); Shaw v. Reno, 509 U.S. 630 (1993); a
multimember district, see Chisom v. Roemer, 501 U.S. 380
(1991); Gingles, 478 U.S. 30; or an at-large system, see
6
For example, five states will count an out-of-precinct vote, but only
if the ballot is filed in the voter’s county (Kansas, New Mexico,
Pennsylvania, Utah) or town (Massachusetts). Louisiana and Rhode
Island will only count votes for federal office. Puerto Rico will count only
votes for Governor and Resident Commissioner.
7
Four states (Idaho, Minnesota, New Hampshire, North Dakota) are
not accounted for in either list because they allow same-day registration
and do not use provisional ballots.
DNC V. HOBBS 151
Rogers v. Lodge, 458 U.S. 613 (1982). Those
“circumstances” are as unique as a fingerprint, subject to
manipulation, and require “an intensely local appraisal” of the
state’s plan. Gingles, 478 U.S. at 78 (internal quotation
marks and citation omitted). Arizona’s OOP applies
statewide; it is not a unique rule, but a traditional rule,
common to the majority of American states. The OOP rule,
as a rule of general applicability, is part of a “political
process[] . . . equally open to participation” by all Arizona
voters. 52 U.S.C. § 10301(b).
B
The majority asserts that “counting or partially counting
OOP ballots would [not] threaten the integrity of Arizona’s
precinct-based system.” Maj. Op. at 78. Effectively, the
majority holds that Arizona must abandon its traditional
polling venue rules and accept the ballots of voters who cast
their ballot in the wrong precinct, at least for national and
state-wide offices. Id. at 76–78 (citing the rules of California,
Utah, and New Mexico as an example of states partially
counting OOP ballots). Under the majority’s preferred
scheme, Arizona must count all votes for offices that are not
precinct dependent. As to the remainder of the ballot,
Arizona may—in accordance with its traditional rule—
disqualify the ballot for all offices for which the political
geography of the precinct matters. The majority has failed to
take into account that the rule it prefers has its own
consequences, including adverse consequences for minority
voters.
Let’s review an example to consider the unintended
consequences of the majority’s haste. Under Arizona’s
traditional rules, the state would disqualify the ballot of a
152 DNC V. HOBBS
voter from Tucson who votes in any precinct other than his
assigned precinct. Under the majority’s new rule, a voter
from Tucson may cross precinct lines and vote in any precinct
in Arizona—for instance, in Phoenix. His cross-precinct
ballot will be counted for those offices which are common to
ballots in his precinct-in-law in Tucson and his new precinct-
in-fact in Phoenix—such offices would include the
presidency, the U.S. Senate, and any statewide offices. His
ballot will be disqualified, however, for all state and local
offices defined by geographic boundaries that are not
common to the two precincts—for example, the U.S. House
of Representatives, the state legislature, and municipal offices
such as mayor, city council, and school board.
The majority’s rule will skew future elections in Arizona
in two predictable ways. First, it overvalues national
elections. Ballots for the presidency, the U.S. Senate, and
any state offices that would otherwise be disqualified must be
counted. Voters—whether intentionally or carelessly—may
vote with impunity in the wrong precinct, knowing that their
vote will count for the national and statewide offices.
Second, it undervalues local elections. Those same
ballots will not be counted toward those federal, state, and
local offices that are defined by geographic boundaries and
for which the voters from the outside precinct are not eligible.
Non-conscientious voters—voters who care more about a
national or a statewide race than the local races—are
permitted to vote wherever they please, while conscientious
voters—those concerned with all the offices on the
ballot—are burdened by the requirement that they find their
way to their proper precinct. And if the conscientious voter
can’t get to the polling place on time, he will have cast no
ballot for any office, national, state, or local.
DNC V. HOBBS 153
The net result is that the majority has lowered the cost to
voters of determining where they are supposed to vote, but
only as to presidential, U.S. Senate, and statewide races. As
the majority no doubt intends, persons who didn’t know or
were confused about their polling place will have their vote
counted, but only in select races. But as the majority may not
have thought through, anyone in Arizona, including people
who know where they are supposed to vote in an election (but
for one reason or another would not have otherwise voted
because it was inconvenient or impossible to vote at their
home precinct), will also be able to vote—but again, only in
select races. Arizona can thus expect more votes in the
presidential, senatorial, and state races than would be cast
under its traditional rules. I suppose that in theory that’s a
good thing. What the majority has not counted on is the
effect its order will have on the races that depend on
geographic boundaries within Arizona: congressional, state-
legislative, and local offices. When voters do not go to their
local precincts to vote, they cannot vote in those races.
Voters who do not take the time to determine their
appropriate precinct—for whatever reason—and vote out of
precinct have disenfranchised themselves with respect to the
local races. That’s a bad thing.
Arizona’s longstanding, neutral rule gives voters an
incentive to figure out where their polling place is, which, in
turn, encourages voters to cast ballots in national, state, and
local elections. In effect, Arizona has stapled national and
statewide elections to other state and local elections. The
opportunity to vote in any one race is the opportunity to vote
in all races. It’s strong medicine, but Arizona’s rule is a self-
protective rule; it helps encourage voting and, presumably,
interest in local elections. The majority’s preferred rule gives
voters an incentive to vote wherever it is convenient for them
154 DNC V. HOBBS
which increases the likelihood they will vote in certain
national and statewide races, but decreases the likelihood they
will vote in other state and local races. It places a burden on
voters who wish to exercise their right to vote on all matters
to which they are entitled, a burden that simply would not
exist for the less-engaged voter. The majority’s rule
contradicts our most basic principles of federalism by
deeming elections for national and statewide offices more
important than those for lesser offices.
The majority’s concern is based on the fact that voters
who vote in the wrong precinct are more likely to be
minorities. Maj. Op. at 42–44. If that fact holds true in the
future—and it may not because, as I have explained, any
voter in Arizona (including those who know where to vote)
may take advantage of the majority’s new rule—then
minority ballots will be underrepresented in the local races.
Under the majority’s preferred scheme, it is thus likely that
more minorities will fail to vote in local elections—elections
that most directly affect the daily lives of ordinary citizens,
and often provide the first platform by which citizen-
candidates, not endowed with personal wealth or name
recognition, seek on the path to obtaining higher office. In
any event, the court has just put a big thumb on the scale of
the Arizona elections—national, state, and local—with
unclear results.
These concerns are magnified when we consider the
relatively small number of OOP ballots. See Democratic
Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 873 (D. Ariz.
2018). It is more likely that these ballots would make a
difference in a local election than in a national or statewide
election. Arizona’s rule encourages its OOP voters—white,
African-American, Hispanic, or other—to vote in the correct
DNC V. HOBBS 155
precinct. Under Arizona’s current OOP rule, a voter, having
gone to the trouble of going to a precinct to vote in person
and suffering the indignity of having to fill out a provisional
ballot, is less likely to make the same mistake the next year.8
A voter who has had a ballot disqualified is more likely to
figure out the correct precinct next time—or, better yet, sign
up for the convenience of early voting, a measure that avoids
the conundrum of OOP altogether.9 The voter who only votes
8
The Majority dismisses this point by highlighting how Arizona has
frequently changed polling places in some localities. Maj. Op. at 111
(referring to Arizona’s high rate of OOP voting). But there is no evidence
in the record that the same voters’s ballots are excluded as OOP year after
year. My point is that a voter who has had her ballot excluded as OOP is
more likely to exercise greater care in finding the right polling location
next time.
9
The Majority worries that OOP voters may never come to know that
their votes were in fact rejected and, hence, will never learn from the
situation. Maj. Op. at 110. Whatever the cause for the Majority’s
concern, Arizona’s statutory law is not to blame. Arizona law specifically
requires county recorders to establish “a method of notifying the
provisional ballot voter at no cost to the voter whether the voter’s ballot
was verified and counted and, if not counted, the reason for not counting
the ballot.” Ariz. Rev. Stat. Ann. § 16-584(F) (2019). Thus, voters should
have the opportunity to find out whether their vote was counted.
Further, to the extent that voters inadvertently vote in the wrong
precinct, that is not a failing of Arizona law. Instead, the law requires that
voters’ names be checked on the precinct register. If a voter’s name does
not appear on the register, then the address is checked to confirm that the
voter resides within that jurisdiction. Id. § 16-584(B). Once the address
is confirmed to be in the precinct or the voter affirms in writing that the
voter is eligible to vote in that jurisdiction, the voter “shall be allowed to
vote a provisional ballot.” Id. Accordingly, under Arizona law, no voter
should inadvertently vote at the wrong precinct without some indication
that something is amiss.
156 DNC V. HOBBS
where it is convenient has disenfranchised himself from local
elections.
States such as California, Utah, and New Mexico have
made the same choice the majority forces on Arizona. Those
states may or may not have made the calculus I have set out
here and they may or may not have measured the costs and
benefits of their new rule; it’s theirs to experiment with.
They may conclude that the new rule is the right one; they
may not. And if any of those states decides that the count-
the-ballots-partially rule is not the best rule, those states will
be free to adopt a different rule, including the OOP rule the
majority strikes down today. After today’s decision, Arizona
has no such recourse.
II
H.B. 2023 presents a different set of considerations.
There is no constitutional or federal statutory right to vote by
absentee ballot. See McDonald v. Bd. of Election Comm’rs
of Chi., 394 U.S. 802, 807–08 (1969) (“It is thus not the right
to vote that is at stake here but a claimed right to receive
absentee ballots. . . . [T]he absentee statutes, which are
designed to make voting more available to some groups who
cannot easily get to the polls, do not themselves deny . . . the
exercise of the franchise . . . .”); see also Crawford, 553 U.S.
at 209 (Scalia, J., concurring in the judgment) (“That the
State accommodates some voters by permitting (not
requiring) the casting of absentee or provisional ballots, is an
indulgence—not a constitutional imperative that falls short of
what is required.”); Griffin v. Roupas, 385 F.3d 1128, 1130
(7th Cir. 2004) (rejecting the claim that there is “a blanket
right of registered voters to vote by absentee ballot” because
“it is obvious that a federal court is not going to decree
DNC V. HOBBS 157
weekend voting, multi-day voting, all-mail voting, or Internet
voting”).10 Nevertheless, if a state is going to offer absentee
ballots, it must do so on an equal basis. Arizona’s absentee
ballot rule, like its OOP rule, is a neutral time, place, or
manner provision to help ensure the integrity of the absentee
voting process. In fact, what is at issue here is not the right
of Arizona voters to obtain and return an absentee ballot, but
the question of who can physically return the ballot.
A
H.B. 2023 provides that “[a] person who knowingly
collects voted or unvoted early ballots from another person is
guilty of a class 6 felony.” Ariz. Rev. Stat. Ann. § 16-
1005(H) (codifying H.B. 2023). The law does not apply to
three classes of persons: (1) “[a]n election official,” (2) “a
United States postal service worker or any other person who
is allowed by law to transmit United States mail,” and (3) “[a]
10
“The exercise of a public franchise by proxy was illegal at common
law.” Cortlandt F. Bishop, History of Elections in the American Colonies
129 (1893). The Colonies experimented with proxy votes, with varying
degrees of success. Proxy voting was not a success in at least one colony.
A 1683 letter to the Governor of South Carolina warned:
Wee are informed that there are many undue practices
in the choyce of members of Parlmt, and that men are
admitted to bring papers for others and put in their
votes for them, wh is utterly illegal & contrary to the
custome of Parliaments & will in time, if suffered, be
very mischeevious: you are therefore to take care that
such practices be not suffered for the future, but every
man must deliver his own vote & noe man suffered to
bring the votes of another . . . .
Id. at 139 (spelling in original) (citation omitted).
158 DNC V. HOBBS
family member, household member or caregiver of the voter.”
Id. § 16-1005(H)–(I)(2).
The Arizona provision is substantially similar to the laws
in effect in many other states. In Indiana, for example, it is a
felony for anyone to collect a voter’s absentee ballot, with
exceptions for members of the voter’s household, the voter’s
designated attorney in fact, certain election officials, and mail
carriers. Ind. Code § 3-14-2-16(4). Connecticut also restricts
ballot collection, permitting only the voter, a designee of an
ill or disabled voter, or the voter’s immediate family
members to mail or return an absentee ballot. Conn. Gen.
Stat. § 9-140b(a). New Mexico likewise permits only the
voter, a member of the voter’s immediate family, or the
voter’s caregiver to mail or return an absentee ballot. N.M.
Stat. Ann. § 1-6-10.1. At least seven other states (Georgia,
Missouri, Nevada, North Carolina, Oklahoma, Ohio, and
Texas) similarly restrict who can personally deliver an
absentee ballot to a voting location. Ga. Code Ann. § 21-2-
385(a) (limiting who may personally deliver an absentee
ballot to designees of ill or disabled voters or family
members); Mo. Rev. Stat. § 115.291(2) (restricting who can
personally deliver an absentee ballot); Nev. Rev. Stat. Ann.
§ 293.330(4) (making it a felony for anyone other than the
voter or the voter’s family member to return an absentee
ballot); Okla. Stat. tit. 26, § 14-108(C) (voter delivering a
ballot must provide proof of identity); Ohio Rev. Code Ann.
§ 3509.05(A) (limiting who may personally deliver an absent
voter’s ballot); Tex. Elec. Code Ann. § 86.006(a) (permitting
only the voter to personally deliver the ballot).11
11
Until recently, two other states had similar provisions on the books.
California formerly limited who could return mail ballots to the voter’s
family or those living in the same household. Compare Cal. Elec. Code
DNC V. HOBBS 159
Other states are somewhat less restrictive than Arizona
because they permit a broader range of people to collect early
ballots from voters but restrict how many ballots any one
person can collect and return. Colorado forbids anyone from
collecting more than ten ballots. Colo. Rev. Stat. § 1-7.5-
107(4)(b). North Dakota prohibits anyone from collecting
more than four ballots, N.D. Cent. Code § 16.1-07-08(1);
New Jersey, N.J. Stat. Ann. § 19:63-4(a), and Minnesota,
Minn. Stat. Ann. § 203B.08 sbd. 1, three; Arkansas, Ark.
Code Ann. § 7-5-403(a)(1), Nebraska, Neb. Rev. Stat. § 32-
943(2), and West Virginia, W. Va. Code § 3-3-5(k), two.
South Dakota prohibits anyone from collecting more than one
ballot without notifying “the person in charge of the election
of all voters for whom he is a messenger.” S.D. Codified
Laws § 12-19-2.2.
Still other states have adopted slightly different
restrictions on who may collect early ballots. California,
Maine, and North Dakota, for example, make it illegal to
collect an absentee ballot for compensation. Cal. Elec. Code
§ 3017(e)(1); Me. Rev. Stat. Ann. tit. 21-A, § 791(2)(A)
(making it a crime to receive compensation for collecting
absentee ballots); N.D. Cent. Code § 16.1-07-08(1)
(prohibiting a person from receiving compensation for acting
as an agent for an elector). Florida and Texas make it a crime
to receive compensation for collecting certain numbers of
§ 3017(a)(2) (West 2019), with Cal. Elec. Code § 3017(a) (West 2015).
It only amended its law in 2016. 2016 Cal. Legis. Serv. ch. 820 (West).
Illinois also used to make it a felony for anyone but the voter, his or her
family, or certain licensed delivery companies to mail or deliver an
absentee ballot. 10 Ill. Comp. Stat. Ann. 5/19-6 (1996); 10 Ill. Comp.
Stat. 5/29-20(4). Illinois amended that provision in 2015 to let voters
authorize others to mail or deliver their ballots. 10 Ill. Comp. Stat. Ann.
5/19-6 (2015).
160 DNC V. HOBBS
ballots. Fla. Stat. Ann. § 104.0616(2) (making it a
misdemeanor to receive compensation for collecting more
than two vote-by-mail ballots); Tex. Elec. Code Ann.
§ 86.0052(a)(1) (criminalizing compensation schemes based
on the number of ballots collected for mailing).
Some of these laws are stated as a restriction on how the
early voter may return a ballot. In those states, the voter risks
having his vote disqualified. See, e.g., Wrinn v. Dunleavy,
440 A.2d 261, 272 (Conn. 1982) (disqualifying ballots and
ordering a new primary election when an unauthorized
individual mailed absentee ballots). In other states, as in
Arizona, the statute penalizes the person collecting the ballot.
See Ind. Code Ann. § 3-14-2-16 (making it a felony
knowingly to receive a ballot from a voter); Nev. Rev. Stat.
Ann. § 293.330(4) (making it a felony for unauthorized
persons to return an absentee ballot); Tex. Elec. Code Ann.
§ 86.006(f)–(g) (making it a crime for an unauthorized person
to possess an official ballot); see also Murphy v. State,
837 N.E.2d 591, 594–96 (Ind. Ct. App. 2005) (affirming a
denial of a motion to dismiss a charge for unauthorized
receipt of a ballot from an absentee voter); People v.
Deganutti, 810 N.E.2d 191, 198 (Ill. App. Ct. 2004)
(affirming conviction for absentee ballot violation). In those
states, the ballot, even if collected improperly, may be valid.
See In re Election of Member of Rock Hill Bd. of Educ.,
669 N.E.2d 1116, 1122–23 (Ohio 1996) (holding that a ballot
will not be disqualified for a technical error).
DNC V. HOBBS 161
In sum, although states have adopted a variety of rules,
Arizona’s ballot collection rule is fully consonant with the
broad range of rules throughout the United States.12
B
Even more striking than the number of other states with
similar provision is that H.B. 2023 follows precisely the
recommendation of the bi-partisan Carter-Baker Commission
on Federal Election Reform.13 The Carter-Baker Commission
found:
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 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,
12
For context, Appendix C provides the relevant provisions of the
laws from all fifty states, the District of Columbia, and the U.S. territories
regarding the collection and mailing of absentee ballots.
13
The Commission on Federal Election Reform was organized by
American University’s Center for Democracy and Election Management
and supported by the Carnegie Corporation of New York, The Ford
Foundation, the John S. and James L. Knight Foundation, and the
Omidyar Network. It was co-chaired by former President Jimmy Carter
and former Secretary of State James Baker.
162 DNC V. HOBBS
candidates, and political party activists from
handling absentee ballots.
Comm’n on Fed. Elections Reform, Building Confidence in
U.S. Elections 46 (2005) (“Building Confidence”) (footnote
omitted). The Carter-Baker Commission recommended that
“States . . . 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.” Id. It made a formal recommendation:
State and local jurisdictions should
prohibit a person from handling absentee
ballots other than the voter, an acknowledged
family member, the U.S. Postal Service or
other legitimate shipper, or election officials.
The practice in some states of allowing
candidates or party workers to pick up and
deliver absentee ballots should be eliminated.
Id. at 47 (Recommendation 5.2.1).
The Carter-Baker Commission recommended that states
limit the persons, other than the voter, who handle or collect
absentee ballots to three classes of persons: (1) family
members, (2) employees of the U.S. Postal Service or another
recognized shipper, and (3) election officials. H.B. 2013
allows two classes of persons to collect absentee ballots:
(1) election officials and (2) employees of the U.S. Postal
Service “or any other person who is allowed by law to
transmit United States mail.” Ariz. Rev. Stat. § 16-1005(H).
H.B. 2023 also provides that the prior restriction on collection
of ballots does not apply to “[a] family member, household
member or caregiver of the voter.” Id. § 16-1005(I)(2). With
DNC V. HOBBS 163
respect to election officials and mail delivery workers,
Arizona tracks exactly the recommendation from the
Commission. With respect to family, however, Arizona’s
provision is more generous than the Carter-Baker
Commission’s recommendation. Whereas the Commission
recommended that only family members be permitted to
handled a voter’s absentee ballot, Arizona expanded the class
of absentee ballot handlers to “household member[s]” and
“caregiver[s].”
I don’t see how Arizona can be said to have violated the
VRA when it followed bipartisan recommendations for
election reform in an area the Carter-Baker Commission
found to be fraught with the risk of voter fraud. Nothing
could be more damaging to confidence in our elections than
fraud at the ballot box. And there is evidence that there is
voter fraud in the collecting of absentee ballots. As the
Seventh Circuit described it: “Voting fraud is a serious
problem in U.S. elections generally . . . and it is facilitated by
absentee voting. . . . [A]bsentee voting is to voting in person
as a take-home exam is to a proctored one.” Griffin, 385 F.3d
at 1130–31; see also Wrinn, 440 A.2d at 270 (“[T]here is
considerable room for fraud in absentee voting and . . . a
failure to comply with the regulatory provision governing
absentee voting increases the opportunity for fraud.” (citation
omitted)); Qualkinbush v. Skubisz, 826 N.E.2d 1181, 1197
(Ill. App. Ct. 2004) (“[T]he integrity of a vote is even more
susceptible to influence and manipulation when done by
absentee ballot.”); Adam Liptak, Error and Fraud at Issue as
Absentee Voting Rises, N.Y. Times (Oct. 6, 2012),
164 DNC V. HOBBS
http://nyti.ms/QUbcrg (discussing a variety of problems in
states).14
Organized absentee ballot fraud of sufficient scope to
corrupt an election is no doomsday hypothetical: it happened
as recently as 2018 in North Carolina. In the state’s Ninth
Congressional District, over 282,000 voters cast ballots,
either in person or absentee. See Brief of Dan McCready at 7,
In re Investigation of Election Irregularities Affecting Ctys.
Within the 9th Cong. Dist. (N.C. State Bd. of Elections Feb.
12, 2019) [hereinafter McCready Br.]. North Carolina
permits “[a]ny qualified voter” in the state to vote by
absentee ballot. N.C. Gen. Stat. § 163A-1295. However, like
Arizona, the state adheres to the Commission’s
recommendations and restricts the categories of persons who
may collect a voter’s absentee ballot. It is a Class I felony in
North Carolina for “any person except the voter’s near
relative or the voter’s verifiable legal guardian to assist the
voter to vote an absentee ballot.” Id. § 163A-1298.
In last year’s election in the Ninth Congressional District,
evidence suggested that a political activist hired by the
Republican nominee paid employees to collect absentee
ballots—possibly more than 1,000—from voters in violation
of § 163A-1298. See Indictment, State v. Dowless,
No. 19CRS001934 (N.C. Super. Ct. July 30, 2019);
McCready Br. at app. 2–3. An employee of the suspected
14
Pressure on absentee voters has long been noted. See Harris,
Election Administration in the United States, at 302 (“The amount of
intimidation now exercised by the precinct captain in many sections of
large cities is very great; with mail voting it would be enormously
increased. The overbearing and dominant precinct captain would insist
upon seeing how each voter under obligation to him had marked his ballot,
and the voter would have no protection against such tactics.”).
DNC V. HOBBS 165
activist testified that she personally collected about three
dozen ballots. See Transcript of Evidentiary Hearing at 150,
In re Investigation of Election Irregularities Affecting Ctys.
Within the 9th Cong. Dist. (N.C. State Bd. of Elections Feb.
18, 2019). She also helped fill in about five or ten
incomplete, unsealed ballots in favor of Republican
candidates. Id. at 67, 99, 152–53. The ballots were kept at
the activist’s home and office for days or longer before they
were turned in. Id. at 69. A voter testified that she turned
over her blank ballot to the activist’s employees in an
unsealed envelope, trusting that the activist would make a
good decision for her. Id. at 207–08, 214–15.
This coordinated ballot fraud led the state Board of
Elections to invalidate the results of the election, which had
been decided by only 905 votes—fewer than the amount of
suspected fraudulent ballots. Order at 10, 44–45, In re
Investigation of Election Irregularities Affecting Ctys. Within
the 9th Cong. Dist. (N.C. State Bd. of Elections Mar. 13,
2019). The residents of the district—some 778,447
Americans—were thus unrepresented in the House of
Representatives for the better part of a year. Perhaps the
more devastating injury will be the damage this episode does
to North Carolinians’ confidence in their election system.
The majority acknowledges that the Democratic Party
disproportionately benefits from get-out-the-vote efforts by
collecting mail-in ballots. See, e.g., Maj. Op. at 83 (quoting
Reagan, 329 F. Supp. 3d at 870). Further, the majority
acknowledges that Democratic activists have often led such
collection efforts. Id. Yet the experience of North Carolina
with Republican activists shows starkly the inherent danger
to allowing political operatives to conduct collections of
mail-in ballots. Arizona is well within its right to look at the
166 DNC V. HOBBS
perils endured by its sister states and enact prophylactic
measures to curtail any similar schemes. By prohibiting
overtly political operatives and activists from playing a role
in the ballot-collection process, Arizona mitigates this risk.
And the State’s well-acknowledged past sins should not
prevent it from using every available avenue to keep safe the
public’s trust in the integrity of electoral outcomes.
Indeed, Arizona does not have to wait until it has proof
positive that its elections have been tainted by absentee ballot
fraud before it may enact neutral rules. “Legislatures . . .
should be permitted to respond to potential deficiencies in the
electoral process with foresight rather than reactively.”
Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986).
In Crawford, the Supreme Court quoted with approval the
Carter-Baker Commission:
There is no evidence of extensive fraud in
U.S. elections or of multiple voting, but both
occur, and it could affect the outcome of a
close election. The electoral system cannot
inspire public confidence if no safeguards
exist to deter or detect fraud or to confirm the
identity of voters.
Crawford, 553 U.S. at 194 (quoting Building Confidence
at 18) (footnote omitted).
The majority today holds that, as a matter of federal law,
Arizona may not enforce a neutrally drawn statute
recommended by a bi-partisan commission criminalizing the
very conduct that produced a fraudulent outcome in a race for
Congress less than a year ago. When the Voting Rights Act
requires courts to consider the “totality of the circumstances,”
DNC V. HOBBS 167
it is a poor understanding of the Act that would strike
common time, place, and manner restrictions designed to
build confidence in the very voting system that it now leaves
vulnerable.
III
As citizens of a democratic republic, we understand
intuitively that we have a legal right and a moral duty to cast
a ballot in free elections. The states have long had the power
to fashion the rules by which its citizens vote for their
national, state, and local officials. Once we consider that
“totality of the circumstances” must take account of long-
held, widely adopted measures, we must conclude that
Arizona’s time, place, and manner rules are well within our
American democratic-republican tradition. Nothing in the
Voting Rights Act makes “‘evenhanded restrictions that
protect the integrity and reliability of the electoral process’
. . . invidious.” Crawford, 553 U.S. at 189–90 (quoting
Anderson, 460 U.S. at 788 n.9).
I would affirm the judgment of the district court, and I
respectfully dissent.
168 DNC V. HOBBS
Appendix A
State and Territory Laws Regarding Treatment of
Out-of-Precinct Provisional Ballots
Jurisdiction Citation
Alabama Ala. Code § 17-9-10 (2019) (providing
that voters must vote in their “county
and voting place” of domicile); see also
Davis v. Bennett, 154 So. 3d 114, 131
(Ala. 2014) (affirming that Alabama
law requires voters to cast ballots at the
correct voting place).
Alaska Alaska Stat. Ann. § 15.20.207(b) (West
2019) (failing to list out-of-precinct
voting as grounds for rejecting a
ballot); Alaska Stat. Ann.
§ 15.20.211(a) (West 2019) (providing
that a voter may cast a vote in another
house district for statewide and federal
offices); see also Hammond v. Hickel,
588 P.2d 256, 264 (Alaska 1978)
(“There is no constitutional requirement
of precinct residency, and there is clear
statutory authorization for persons
claiming to be registered voters to vote
a questioned ballot if there is no
evidence of registration in the precinct
in which the voter seeks to vote.”).
American Am. Samoa Code Ann. § 6.0223(b)–(c)
Samoa (providing that a voter’s right to vote
may be challenged if the voter “is not
DNC V. HOBBS 169
entitled to vote in that district” and, if
true, the ballot will be rejected).
Arizona Ariz. Rev. Stat. Ann. § 16-584(D)–(E)
(2018) (requiring confirmation that the
voter resided in the precinct).
Arkansas Ark. Code Ann. § 7-5-308(f) (West
2017) (requiring only that voters be
registered to vote in the state).
California Cal. Elec. Code § 14310(c)(3) (West
2019) (“The provisional ballot of a
voter who is otherwise entitled to vote
shall not be rejected because the voter
did not cast his or her ballot in the
precinct to which he or she was
assigned by the elections official.”).
Colorado 8 Colo. Code Regs. § 1505-1:17.2.9
(2019) (providing that if an elector used
the wrong ballot, then “only races and
issues for which the elector [was]
qualified to vote may be counted”).
Connecticut Conn. Gen. Stat. Ann. §§ 9-232, 9-232n
(West 2019) (requiring that only
provisional ballots by applicants
eligible to vote in a given town may be
counted).
Delaware Del. Code Ann. tit. 15,
§ 4948(h)(7)–(8) (West 2015)
(explaining that provisional ballots may
not be counted if cast by voters outside
of their election districts).
170 DNC V. HOBBS
District of D.C. Code Ann. § 1-1001.09(b)(3)
Columbia (West 2017) (providing that, aside from
those requiring accessible entrances,
“[n]o registered qualified elector of the
District may cast a vote in a precinct
that does not serve his or her current
residence”); D.C. Mun. Regs. tit. 3,
§ 807 (2019) (stating that a provisional
ballot may be tabulated if, inter alia,
“the voter cast the Special Ballot at the
precinct in which the voter maintains
residence or at an early voting center
designated by the Board”).
Florida Fla. Stat. Ann. § 101.048(2)(a) (West
2019) (“The county canvassing board
shall examine each Provisional Ballot
Voter’s Certificate and Affirmation to
determine if the person voting that
ballot was entitled to vote at the
precinct where the person cast a vote in
the election . . . .”).
Georgia Ga. Code Ann. § 21-2-419(c)(2) (West
2019) (stating that if a voter voted in
the wrong precinct, then races for
which the voter was entitled to vote
shall be counted).
Guam 3 Guam Code Ann. § 14105(a) (2016)
(“When a provisional voter casts a
provisional ballot in the incorrect
precinct, election officials shall count
the votes on that ballot in every race for
which the voter would be entitled to
DNC V. HOBBS 171
vote if he or she had been in the correct
precinct.”).
Hawai‘i Haw. Code R. § 3-172-140(c)(3) (2017)
(“If [the] county clerk determines the
individual is not eligible to vote in the
precinct where the provisional ballot
was cast, the provisional ballot shall not
be counted.”).
Idaho Does not use provisional ballots
because the state allows for election-
day registration. See Idaho Code Ann.
§ 34-408A (West 2019).
Illinois 10 Ill. Comp. Stat. Ann. 5/18A-15(b)(1)
(West 2015) (explaining that a
provisional ballot is valid if, inter alia,
“the provisional voter cast the
provisional ballot in the correct
precinct”).
Indiana Ind. Code Ann. § 3-11.7-5-3(a) (West
2019) (providing that a ballot is invalid
and may not be counted if “the
provisional voter is not a qualified voter
of the precinct”).
Iowa Iowa Code Ann. § 49.9 (West 2019)
(explaining that “a person shall not vote
in any precinct but that of the person’s
residence”).
Kansas Kan. Stat. Ann. § 25-3002(b)(3) (West
2019) (explaining that if a voter cast a
ballot for the wrong precinct, but was
172 DNC V. HOBBS
still within the same county, then votes
for which the voter was eligible will be
counted).
Kentucky 31 Ky. Admin. Regs. 6:020(14) (2019)
(“If the county board of elections
determines the individual is ineligible
to vote in the precinct in the election,
the vote shall not be counted . . . .”).
Louisiana La. Stat. Ann. § 18:556.2(F)(3)(a)–(b)
(2017) (stating that a provisional ballot
may be counted if the voter was a
registered voter in the parish and was
eligible to vote for the federal offices
cast).
Maine Me. Stat. tit. 11, § 50 (2019) (providing
that all ballots cast in Maine will be
counted so long as “challenged ballots
are insufficient in number to affect the
result of the election”).
Maryland Md. Code Ann., Elec. Law § 11-
303(e)(2) (West 2019) (stating that if
the voter voted out of precinct, “only
the votes cast by the voter for each
candidate or question applicable to the
precinct in which the voter resides” will
get counted).
Massachusetts Mass. Gen. Laws Ann. ch. 54, § 76C(d)
(West 2004) (“A provisional ballot cast
by a person whose name is not on the
voting list for the city or town in which
DNC V. HOBBS 173
they are claiming the right to vote, but
whom the city or town clerk determines
to be eligible to vote in another precinct
of the same city or town, shall be
counted in the precinct in which the
person cast the provisional ballot for all
offices for which the person is eligible
to vote.”).
Michigan Mich. Comp. Laws Ann. § 168.813(1)
(West 2018) (stating that provisional
ballots may only be counted “if the
identity and residence of the elector is
established”).
Minnesota Does not use provisional ballots
because the state allows for election-
day registration. See Minn. Stat. Ann.
§ 201.061 subd. 3(a) (West 2017).
Mississippi 1 Miss. Admin. Code Pt. 10, Exh. A
(2019) (“Poll managers shall advise an
affidavit voter his/her ballot will not
count if he/she is voting at the wrong
polling place.”).
Missouri Mo. Ann. Stat. § 115.430(2)(1) (West
2019) (explaining that ballots voted in
a polling place where the voter was not
eligible to vote will not be counted).
Montana Mont. Code Ann. § 13-15-107 (West
2019) (stating that a ballot must be
rejected if the voter’s identity and
eligibility cannot be verified).
174 DNC V. HOBBS
Nebraska Neb. Rev. Stat. Ann. § 32-1002(5)(e)
(West 2019) (providing that a
provisional ballot shall not be counted
if “[t]he residence address provided on
the registration application completed
. . . is in a different county or in a
different precinct than the county or
precinct in which the voter voted”).
Nevada Nev. Rev. Stat. Ann. § 293.3085 (West
2019) (“A provisional ballot must not
be counted if the county or city clerk
determines that the person who cast the
provisional ballot cast the wrong ballot
for the address at which the person
resides.”).
New Does not use provisional ballots
Hampshire because the state allows for election-
day registration. See N.H. Rev. Stat.
Ann. § 654:7-a (2017).
New Jersey N.J. Stat. Ann. § 19:53C-17 (West
2019) (“If, for any reason, a provisional
ballot voter votes a ballot other than the
ballot for the district in which the voter
is qualified to vote, the votes for those
offices and questions for which the
voter would be otherwise qualified to
vote shall be counted. All other votes
shall be void.”).
New Mexico N.M. Stat. Ann. § 1-12-25.4(F) (West
2019) (“If the voter is a registered voter
in the county but has voted on a
DNC V. HOBBS 175
provisional paper ballot other than the
ballot of the voter’s correct precinct,
the county canvassing board shall
ensure that only those votes for the
positions or measures for which the
voter was eligible to vote are
counted.”).
New York N.Y. Elec. Law § 9-209(2)(a)(iii)
(McKinney 2019) (“If the board of
elections determines that a person was
entitled to vote at such election, the
board shall cast and canvass such ballot
if such board finds that the voter
appeared at the correct polling place,
regardless of the fact that the voter may
have appeared in the incorrect election
district.”).
North Carolina N.C. Gen. Stat. Ann. § 163A-
1169(a)(4) (West 2019) (“If the county
board of elections finds that an
individual voting a provisional official
ballot (i) was registered in the county as
provided in G.S. 163A-1166, (ii) voted
in the proper precinct under G.S. 163A-
841 and G.S. 163A-842, and (iii) was
otherwise eligible to vote, the
provisional official ballots shall be
counted by the county board of
elections before the canvass. Except as
provided in G.S. 163A-1184(e), if the
county board finds that an individual
voting a provisional official ballot
176 DNC V. HOBBS
(i) did not vote in the proper precinct
under G.S. 163A-841 and G.S. 163A-
842, (ii) is not registered in the county
as provided in G.S. 163A-860, or (iii) is
otherwise not eligible to vote, the ballot
shall not be counted. If a voter was
properly registered to vote in the
election by the county board, no
mistake of an election official in giving
the voter a ballot or in failing to comply
with G.S. 163A-1184 or G.S. 163A-
1142 shall serve to prevent the counting
of the vote on any ballot item the voter
was eligible by registration and
qualified by residency to vote.”).
North Dakota North Dakota does not require voters to
be registered and does not utilize
provisional ballots. See N.D. Cent.
Code Ann. § 16.1-01-04 (West 2019).
Northern 1 N. Mar. I. Code § 6215(b)–(c) (2014)
Mariana Islands (providing that a voter’s right to vote
may be challenged if the voter “is not
entitled to vote in that election district”
and, if true, the ballot will be rejected).
Ohio Ohio Rev. Code Ann. § 3505.183(D)
(West 2019) (stating that under certain
circumstances, if a voter cast a ballot in
the wrong precinct due to poll-worker
error, then the votes for which the voter
would have been eligible to cast are
counted).
DNC V. HOBBS 177
Oklahoma Okla. Stat. Ann. tit. 26, § 7-116.1(C)
(West 2019) (“A provisional ballot
shall be counted only if it is cast in the
precinct of the voter’s residence . . . .”).
Oregon Or. Rev. Stat. Ann. § 254.408(6) (West
2018) (explaining that provisional votes
will be counted according to whether
“the elector is qualified to vote for the
particular office or on the measure”).
Pennsylvania 25 Pa. Stat. and Cons. Stat. Ann.
§ 3050(a.4)(7) (West 2012) (providing
that so long as a ballot is cast within the
voter’s county, if it is cast in the wrong
election district, then only votes which
the voter was entitled to make will be
counted).
Puerto Rico P.R. Laws Ann. tit. 16, § 4062 (2011)
(“If a voter votes in a precinct other
than the one where he/she is registered,
only the vote cast for the offices of
Governor and Resident Commissioner
shall be adjudicated during the general
canvass.”).
Rhode Island 410 R.I. Code R. § 20-00-13.7(C)(1)(b)
(2012) (stating that when a voter who
cast a provisional ballot lives outside of
the precinct, the ballot shall be marked
“Federal Offices Only” and only votes
for federal officials for whom the voter
was eligible to vote shall be counted).
178 DNC V. HOBBS
South Carolina S.C. Code Ann. § 7-13-830 (2019) (“If
the board certifies the person
challenged is not a qualified elector of
the precinct, this certification is
considered an administrative challenge
and is clear and convincing evidence
for the meeting authority to disallow
the ballot.”).
South Dakota S.D. Codified Laws § 12-20-5.1 (2019)
(“Prior to the official canvass, the
person in charge of the election shall
determine if the person voting by
provisional ballot was legally qualified
to vote in the precinct in which the
provisional ballot was cast.”).
Tennessee Tenn. Code Ann. § 2-7-112(a)(3)(B)(v)
(West 2018) (explaining that a ballot
shall be rejected if it is determined that
the voter should not have cast the ballot
in the precinct).
Texas Tex. Elec. Code Ann. § 65.054(b)(1)
(West 2012) (stating that a provisional
ballot shall be accepted only if the voter
was qualified to cast it); see also
Morales v. Segura, No. 04-15-365,
2015 WL 8985802, at *4 (Tex. App.
Dec. 16, 2015) (upholding the rejection
of a ballot voted in the wrong precinct).
Utah Utah Code Ann. § 20A-4-107(a)–(c)
(West 2019) (explaining that a ballot
voted in the wrong precinct but the
DNC V. HOBBS 179
right county is able to have any votes
counted for which the voter was
eligible to vote).
Vermont Vt. Stat. Ann. tit. 17, § 2121(a) (West
2019) (explaining that a voter is
qualified to “register to vote in the town
of his or her residence”); see also id.
§ 2557(a) (stating that a provisional
ballot may be accepted once the town
clerk “determine[s] whether the
applicant meets all of the registration
eligibility requirements”).
Virgin Islands V.I. Code Ann. tit. 18, §§ 581(a), 587
(2019) (providing that voters must
reside in their election districts and that
poll workers must challenge an
individual that they believe does not
reside within the district).
Virginia Va. Code Ann. § 24.2-653(B) (West
2015) (“The electoral board shall . . .
determine whether each person having
submitted such a provisional vote was
entitled to do so as a qualified voter in
the precinct in which he offered the
provisional vote.”).
Washington Wash. Admin. Code § 434-262-032
(2019) (listing situations where a ballot
must be struck and failing to provide
out-of-precinct voting as reason for
disqualifying a ballot).
180 DNC V. HOBBS
West Virginia W. Va. Code Ann. § 3-1-41(d) (West
2016) (stating that poll clerks must
warn “that if the voter is casting a ballot
in the incorrect precinct, the ballot cast
may not be counted for that election”).
Wisconsin Wis. Stat. Ann. § 6.97(4) (West 2018)
(providing that there must be a
determination of whether the
“individual who has voted under this
section is qualified to vote in the ward
or election district where the
individual’s ballot is cast”).
Wyoming Wyo. Stat. Ann. § 22-15-105(b) (West
2019) (requiring voters to swear that
they are entitled to vote in the given
precinct).
DNC V. HOBBS 181
Appendix B
State and Territory Treatment of Out-of-Precinct
Provisional Ballots15
Do Not Tabulate Out-of- Tabulate Out-of-Precinct
Precinct Ballots Ballots
Alabama Alaska
American Samoa Arkansas
Arizona California
Connecticut Colorado
Delaware Georgia
District of Columbia Guam
Florida Kansas*
Hawai‘i Louisiana†
Illinois Maine
Indiana Maryland
Iowa Massachusetts*
Kentucky New Jersey
Michigan New Mexico*
15
Idaho, Minnesota, New Hampshire, and North Dakota are not
included because they do not use provisional ballots. See supra
Appendix A.
182 DNC V. HOBBS
Mississippi New York
Missouri North Carolina‡
Montana Ohio††
Nebraska Oregon
Nevada Pennsylvania*
Northern Mariana Islands Puerto Rico**
Oklahoma Rhode Island†
South Carolina Utah*
South Dakota Washington
Tennessee
Texas
Vermont
Virgin Islands
Virginia
West Virginia
Wisconsin
Wyoming
* Requires the voter to be in the correct county, city, or
town.
† Tabulates votes for federal offices only.
DNC V. HOBBS 183
‡ There is some divergence among secondary sources
regarding whether North Carolina counts OOP ballots.
Compare Provisional Ballots, Nat’l Conf. of St. Legislatures
(Oct. 15, 2018), http://www.ncsl.org/research/elections-and-
campaigns/provisional-ballots.aspx, with What Is
Provisional Voting? Explained, democracy N.C.,
https://democracync.org/resources/what-is-provisional-
voting-explained (last visited Oct. 15, 2019). North Carolina
law generally disfavors counting only provisional ballots cast
within the correct precinct. See N.C. Gen. Stat. Ann. § 163A-
1169(a)(4) (West 2019) (“[I]f the county board finds that an
individual voting a provisional official ballot (i) did not vote
in the proper precinct . . . the ballot shall not be counted.”);
see also James v. Bartlett, 607 S.E.2d 638, 642 (N.C. 2005)
(“[V]oters must cast ballots on election day in their precincts
of residence.”). Nevertheless, North Carolina law appears to
allow an OOP vote to be tabulated in very narrow
exceptions—such as election-official error. See N.C. Gen.
Stat. Ann. § 163A-1169(a)(4) (“If a voter was properly
registered to vote in the election by the county board, no
mistake of an election official in giving the voter a ballot or
in failing to comply with G.S. 163A-1184 or G.S. 163A-1142
shall serve to prevent the counting of the vote on any ballot
item the voter was eligible by registration and qualified by
residency to vote.”). This dissent resolves doubt in favor of
listing North Carolina as a state that counts OOP
ballots—even though its current law and practice are not
entirely clear.
†† The ballot may be counted if, among other things, the
casting of the wrong ballot was a result of poll-worker error.
Only offices for which the voter would have been eligible to
vote will be counted.
184 DNC V. HOBBS
** Only the votes for Governor and Resident
Commissioner will be canvassed.
DNC V. HOBBS 185
Appendix C
State and Territory Laws Regarding the
Collection of Absentee Ballots
Jurisdiction Citation
Alabama Ala. Code § 17-11-4 (2019):
An application for a voter who requires
emergency treatment by a licensed
physician within five days before an
election pursuant to Section 17-11-3
may be forwarded to the absentee
election manager by the applicant or his
or her designee.
Alaska Alaska Stat. Ann. § 15.20.072 (West
2019) (providing a method a personal
representative to handle and deliver
ballots for a special needs voter).
American Am. Samoa Code Ann. 6.1104(a):
Samoa
The reply envelope shall bear upon the
face thereof the name, official title, and
post office address of the Chief
Election Officer and the words
“Absentee Ballot Enclosed”. The back
of the reply envelope shall contain a
statement to be subscribed to by the
qualified elector which affirms the fact
that he is the person voting.
186 DNC V. HOBBS
Arizona Ariz. Rev. Stat. Ann. § 16-1005(H)–(I)
(2016):
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 481 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,
nursing care institution, hospice
facility, assisted living center, assisted
DNC V. HOBBS 187
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,
marri age, adopt ion or legal
guardianship.
(d) “Household member” means a
person who resides at the same
residence as the voter.
Arkansas Ark. Code Ann. § 7-5-403(a) (West
2019):
(1) A designated bearer may obtain
absentee ballots for no more than two
(2) voters per election.
(2)(A) A designated bearer shall not
have more than two (2) absentee ballots
in his or her possession at any time.
(B) If the county clerk knows or
reasonably suspects that a designated
bearer has more than two (2) absentee
ballots in his or her possession, the
county clerk shall notify the
prosecuting attorney.
188 DNC V. HOBBS
(3)(A) A designated bearer receiving an
absentee ballot from the county clerk
for a voter shall obtain the absentee
ballot directly from the county clerk
and deliver the absentee ballot directly
to the voter.
(B) A designated bearer receiving an
absentee ballot from a voter shall obtain
the absentee ballot directly from the
voter and deliver the absentee ballot
directly to the county clerk.
(4)(A) A designated bearer may deliver
to the county clerk the absentee ballots
for not more than two (2) voters.
(B) The designated bearer shall be
named on the voter statement
accompanying the absentee ballot.
California Cal. Elec. Code § 3017(a)(2) (West
2019):
A vote by mail voter who is unable to
return the ballot may designate another
person to return the ballot to the
elections official who issued the ballot,
to the precinct board at a polling place
or vote center within the state, or to a
vote by mail ballot dropoff location
within the state that is provided
pursuant to Section 3025 or 4005. The
person designated shall return the ballot
DNC V. HOBBS 189
in person, or put the ballot in the mail,
no later than three days after receiving
it from the voter or before the close of
the polls on election day, whichever
time period is shorter. Notwithstanding
subdivision (d), a ballot shall not be
disqualified from being counted solely
because it was returned or mailed more
than three days after the designated
person received it from the voter,
provided that the ballot is returned by
the designated person before the close
of polls on election day.
Colorado Colo. Rev. Stat. Ann. § 1-7.5-
107(4)(b)(I) (West 2019)
The eligible elector may:
(A) Return the marked ballot to the
county clerk and recorder or designated
election official by United States mail
or by depositing the ballot at the office
of the county clerk and recorder or
designated election official or at any
voter service and polling center, drop
box, or drop-off location designated by
the county clerk and recorder or
designated election official as specified
in the election plan filed with the
secretary of state. The ballot must be
returned in the return envelope.
190 DNC V. HOBBS
(B) Deliver the ballot to any person of
the elector’s own choice or to any duly
authorized agent of the county clerk
and recorder or designated election
official for mailing or personal
delivery; except that no person other
than a duly authorized agent of the
county clerk and recorder or designated
election official may receive more than
ten mail ballots in any election for
mailing or delivery; or
(C) Cast his or her vote in person at the
voter service and polling center.
Connecticut Conn. Gen. Stat. Ann. § 9-140b(a)
(West 2019):
An absentee ballot shall be cast at a
primary, election or referendum only if:
(1) It is mailed by (A) the ballot
applicant, (B) a designee of a person
who applies for an absentee ballot
because of illness or physical disability,
or (C) a member of the immediate
family of an applicant who is a student,
so that it is received by the clerk of the
municipality in which the applicant is
qualified to vote not later than the close
of the polls; (2) it is returned by the
applicant in person to the clerk by the
day before a regular election, special
election or primary or prior to the
opening of the polls on the day of a
DNC V. HOBBS 191
referendum; (3) it is returned by a
designee of an ill or physically disabled
ballot applicant, in person, to said clerk
not later than the close of the polls on
the day of the election, primary or
referendum; (4) it is returned by a
member of the immediate family of the
absentee voter, in person, to said clerk
not later than the close of the polls on
the day of the election, primary or
referendum; (5) in the case of a
presidential or overseas ballot, it is
mailed or otherwise returned pursuant
to the provisions of section 9-158g; or
(6) it is returned with the proper
identification as required by the Help
America Vote Act, P.L. 107-252,1 as
amended from time to time, if
applicable, inserted in the outer
envelope so such identification can be
viewed without opening the inner
envelope. A person returning an
absentee ballot to the municipal clerk
pursuant to subdivision (3) or (4) of this
subsection shall present identification
and, on the outer envelope of the
absentee ballot, sign his name in the
presence of the municipal clerk, and
indicate his address, his relationship to
the voter or his position, and the date
and time of such return. As used in this
section, “immediate family” means a
dependent relative who resides in the
192 DNC V. HOBBS
individual’s household or any spouse,
child or parent of the individual.
Delaware Del. Code Ann. tit. 15, § 5507(4) (West
2018):
The elector shall return the sealed ballot
envelope to the Department by:
a. Depositing it in a United States
postal mailbox, thereby mailing it to the
Department; or
b. Delivering it, or causing it to be
delivered, to the Department before the
polls close on the day of the election.
District of D.C. Mun. Regs. tit. 3, § 722.2 (2019):
Columbia
A duly registered voter shall apply to
vote by emergency absentee ballot
according to the following procedure:
(a) The registered voter shall, by signed
affidavit on a form provided by the
Board, set forth:
(1) The reason why he or she is unable
to be present at the polls on the day of
the election; and
(2) Designate a duly registered voter to
serve as agent for the purpose of
delivering the absentee ballot to the
DNC V. HOBBS 193
voter, except than an officer of the
court in charge of a jury sequestered on
election day may act as agent for any
registered voter sequestered regardless
of whether the officer is a registered
voter in the District.
(b) Upon receipt of the application, the
Executive Director, or his or her
designee, if satisfied that the person
cannot, in fact, be present at the polling
place on the day of the election shall
issue to the voter, through the voter’s
duly authorized agent, an absentee
ballot which shall be marked by the
voter, placed in a sealed envelope and
returned to the Board before the close
of the polls on election day.
(c) The person designated as agent
shall, by signed affidavit on a form
prescribed by the Board, state the
following:
(1) That the ballot will be delivered by
the voter who submitted the application
for the ballot; and
(2) That the ballot shall be marked by
the voter and placed in a sealed
envelope in the agent’s presence, and
returned, under seal to the Board by the
agent.
194 DNC V. HOBBS
Florida Fla. Stat. Ann. § 104.0616 (West 2016):
(1) For purposes of this section, the
term “immediate family” means a
person’s spouse or the parent, child,
grandparent, or sibling of the person or
the person’s spouse.
(2) Any person who provides or offers
to provide, and any person who accepts,
a pecuniary or other benefit in
exchange for distributing, ordering,
requesting, collecting, delivering, or
otherwise physically possessing more
than two vote-by-mail ballots per
election in addition to his or her own
ballot or a ballot belonging to an
immediate family member, except as
provided in ss. 101.6105–101.694,
commits a misdemeanor of the first
degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
Georgia Ga. Code Ann. § 21-2-385 (West
2019):
(a) . . . Such envelope shall then be
securely sealed and the elector shall
then personally mail or personally
deliver same to the board of registrars
or absentee ballot clerk, provided that
mailing or delivery may be made by the
elector’s mother, father, grandparent,
aunt, uncle, brother, sister, spouse, son,
DNC V. HOBBS 195
daughter, niece, nephew, grandchild,
son-in-law, daughter-in-law, mother-in-
law, father-in-law, brother-in-law,
sister-in-law, or an individual residing
in the household of such elector. The
absentee ballot of a disabled elector
may be mailed or delivered by the
caregiver of such disabled elector,
regardless of whether such caregiver
resides in such disabled elector’s
household. The absentee ballot of an
elector who is in custody in a jail or
other detention facility may be mailed
or delivered by any employee of such
jail or facility having custody of such
elector. An elector who is confined to a
hospital on a primary or election day to
whom an absentee ballot is delivered by
the registrar or absentee ballot clerk
shall then and there vote the ballot, seal
it properly, and return it to the registrar
or absentee ballot clerk. . . .
(b) A physically disabled or illiterate
elector may receive assistance in
preparing his or her ballot from any
person of the elector’s choice other than
such elector’s employer or the agent of
such employer or an officer or agent of
such elector’s union; provided,
however, that no person whose name
appears on the ballot as a candidate at a
particular primary, election, or runoff
196 DNC V. HOBBS
nor [specified relatives of a candidate]
to any elector who is not related to such
candidate. . . . The person rendering
assistance to the elector in preparing the
ballot shall sign the oath printed on the
same envelope as the oath to be signed
by the elector. Any person who
willfully violates this subsection shall
be guilty of a felony and, upon
conviction thereof, shall be sentenced
to imprisonment for not less than one
nor more than ten years or to pay a fine
not to exceed $100,000.00, or both, for
each such violation.
Guam 3 Guam Code Ann. § 10107 (2016):
The Commission shall deliver a ballot
to any qualified elector applying in
person at the office of said
Commission; provided, however, that
such applicant shall complete and
subscribe the application heretofore
prescribed by this Chapter; provided
further, that said application shall be
made not more than thirty (30) days nor
less than one (1) day before the date of
the election for which the vote is being
cast. It is provided further, that said
ballot shall be immediately marked,
enclosed in the ballot envelope, placed
in the return envelope with the proper
affidavit enclosed, and immediately
returned to the Commission.
DNC V. HOBBS 197
Hawai‘i Haw. Rev. Stat. Ann. § 15-9 (West
2019):
(a) The return envelope shall be:
(1) Mailed and must be received by the
clerk issuing the absentee ballot no later
than the closing hour on election day in
accordance with section 11-131; or
(2) Delivered other than by mail to the
clerk issuing the absentee ballot, or to a
voter service center no later than the
closing hour on election day in
accordance with section 11-131.
(b) Upon receipt of the return envelope
from any person voting under this
chapter, the clerk may prepare the
ballots for counting pursuant to this
section and section 15-10.
(c) Before opening the return and ballot
envelopes and counting the ballots, the
return envelopes shall be checked for
the following:
(1) Signature on the affirmation
statement;
198 DNC V. HOBBS
(2) Whether the signature corresponds
with the absentee request or register as
prescribed in the rules adopted by the
chief election officer; and
(3) Whether the person is a registered
voter and has complied with the
requirements of sections 11-15 and 11-
16.
(d) If any requirement listed in
subsection (c) is not met or if the return
or ballot envelope appears to be
tampered with, the clerk or the absentee
ballot team official shall mark across
the face of the envelope “invalid” and it
shall be kept in the custody of the clerk
and disposed of as prescribed for
ballots in section 11-154.
Idaho Idaho Code Ann. § 34-1005 (West
2019):
The return envelope shall be mailed or
delivered to the officer who issued the
same; provided, that an absentee ballot
must be received by the issuing officer
by 8:00 p.m. on the day of election
before such ballot may be counted.
DNC V. HOBBS 199
Illinois 10 Ill. Comp. Stat. Ann. § 5/19-6 (West
2015):
It shall be unlawful for any person not
the voter or a person authorized by the
voter to take the ballot and ballot
envelope of a voter for deposit into the
mail unless the ballot has been issued
pursuant to application by a physically
incapacitated elector under Section 3-3
or a hospitalized voter under Section
19-13, in which case any employee or
person under the direction of the
facility in which the elector or voter is
located may deposit the ballot and
ballot envelope into the mail. If the
voter authorized a person to deliver the
ballot to the election authority, the
voter and the person authorized to
deliver the ballot shall complete the
authorization printed on the exterior
envelope supplied by an election
authority for the return of the vote by
mail ballot.
Indiana Ind. Code Ann. § 3-14-2-16(4) (West
2019):
A person who knowingly does any of
the following commits a Level 6
felony: . . .
200 DNC V. HOBBS
(4) Receives from a voter a ballot
prepared by the voter for voting,
except:
(A) the inspector;
(B) a member of the precinct election
board temporarily acting for the
inspector;
(C) a member or an employee of a
county election board (acting under the
authority of the board and state law) or
an absentee voter board member acting
under IC 3-11-10; or
(D) a member of the voter’s household,
an individual designated as attorney in
fact for the voter, or an employee of:
(i) the United States Postal Service; or
(ii) a bonded courier company;
(acting in the individual’s capacity as
an employee of the United States Postal
Service or a bonded courier company)
when delivering an envelope containing
an absentee ballot under IC 3-11-10-1.
Iowa Iowa Code Ann. § 53.17(1) (West
2019):
DNC V. HOBBS 201
a. The sealed return envelope may be
delivered by the registered voter, by the
voter’s designee, or by the special
precinct election officials designated
pursuant to section 53.22, subsection 2,
to the commissioner’s office no later
than the time the polls are closed on
election day. However, if delivered by
the voter’s designee, the envelope shall
be delivered within seventy-two hours
of retrieving it from the voter or before
the closing of the polls on election day,
whichever is earlier.
b. The sealed return envelope may be
mailed to the commissioner by the
registered voter or by the voter’s
designee. If mailed by the voter’s
designee, the envelope must be mailed
within seventy-two hours of retrieving
it from the voter or within time to be
postmarked or, if applicable, to have
the postal service barcode traced to a
date of entry into the federal mail
system not later than the day before the
election, as provided in section 53.17A,
whichever is earlier.
Kansas Kan. Stat. Ann. § 25-1221 (West 2019):
After such voter has marked the official
federal services absentee ballot, he or
she shall place it in the official ballot
envelope and secretly seal the same.
202 DNC V. HOBBS
Such voter shall then fill out in full the
form printed upon the official ballot
envelope and sign the same. Such ballot
envelope shall then be placed in the
envelope provided for such purpose and
mailed by the voter to the county
election officer of the county of the
voter’s residence.
Kan. Stat. Ann. § 25-1124(d) (West
2019):
Any voted ballot may be transmitted to
the county election officer by the voter
or by another person designated in
writing by the voter, except if the voter
has a disability preventing the voter
from writing and signing a statement,
the written and signed statement
required by subsection (e) shall be
sufficient.
Kentucky Ky. Rev. Stat. Ann. § 117.086(1) (West
2019):
The voter returning his absentee ballot
by mail shall mark his ballot, seal it in
the inner envelope and then in the outer
envelope, and mail it to the county
clerk as shall be provided by this
chapter. The voter shall sign the
detachable flap and the outer envelope
in order to validate the ballot. A person
having power of attorney for the voter
DNC V. HOBBS 203
and who signs the detachable flap and
outer envelope for the voter shall
complete the voter assistance form as
required by KRS 117.255. The
signatures of two (2) witnesses are
required if the voter signs the form with
the use of a mark instead of the voter’s
signature. A resident of Kentucky who
is a covered voter as defined in KRS
117A.010 who has received an absentee
ballot transmitted by facsimile machine
or by means of the electronic
transmission system established under
KRS 117A.030(4) shall transmit the
voted ballot to the county clerk by mail
only, conforming with ballot security
requirements that may be promulgated
by the state board by administrative
regulation. In order to be counted, the
ballots shall be received by the clerk by
at least the time established by the
election laws generally for the closing
of the polls, which time shall not
include the extra hour during which
those voters may vote who were
waiting in line to vote at the scheduled
poll closing time.
Louisiana La. Stat. Ann. § 18:1308(B) (2017):
The ballot shall be marked as provided
in R.S. 18:1310 and returned to the
registrar by the United States Postal
Service, a commercial courier, or hand
204 DNC V. HOBBS
delivery. If delivered by other than the
voter, a commercial courier, or the
United States Postal Service, the
registrar shall require that the person
making such delivery sign a statement,
prepared by the secretary of state,
certifying that he has the authorization
and consent of the voter to hand deliver
the marked ballot. For purposes of this
Subsection, “commercial courier” shall
have the same meaning as provided in
R.S. 13:3204(D). No person except the
immediate family of the voter, as
defined in this Code, shall hand deliver
more than one marked ballot to the
registrar.
Maine Me. Rev. Stat. Ann. tit. 21-A,
§ 791(2)(A) (2009):
A person commits a Class D crime if
that person [d]elivers, receives, accepts,
notarizes or witnesses an absentee
ballot for any compensation. This
paragraph does not apply to a
governmental employee handling
ballots in the course of that employee’s
official duties or a person who handles
absentee ballots before the unvoted
ballots are delivered to the municipality
or after the voted ballots are returned to
the clerk.
DNC V. HOBBS 205
Md. Md. Code Ann., Elec. Law § 9-307
(West 2019):
(a) A qualified applicant may designate
a duly authorized agent to pick up and
deliver an absentee ballot under this
subtitle.
(b) An agent of the voter under this
section:
(1) must be at least 18 years old;
(2) may not be a candidate on that
ballot;
(3) shall be designated in a writing
signed by the voter under penalty of
perjury; and
(4) shall execute an affidavit under
penalty of perjury that the ballot was:
(i) delivered to the voter who submitted
the application;
(ii) marked and placed in an envelope
by the voter, or with assistance as
allowed by regulation, in the agent’s
presence; and
(iii) returned to the local board by the
agent.
206 DNC V. HOBBS
Massachusetts Mass. Gen. Laws Ann. ch. 54, § 92(a)
(West 2019):
A voter who receives the ballot by mail,
as provided in subsection (a) of section
ninety-one B, may return it by mail to
the city or town clerk in the envelope
provided pursuant to subsection (d) of
section eighty-seven, or such voter or a
family member may deliver it in
person to the office of the city or town
clerk. A voter to whom a ballot was
delivered in person at the office of the
clerk as provided in said subsection (a)
of said section ninety-one B shall return
it without removing the ballot from
such office.
Michigan Mich. Comp. Laws Ann. § 168.764a
(West 2019):
Step 5. Deliver the return envelope by
1 of the following methods:
(a) Place the necessary postage upon
the return envelope and deposit it in the
United States mail or with another
public postal service, express mail
service, parcel post service, or common
carrier.
(b) Deliver the envelope personally to
the office of the clerk, to the clerk, or to
an authorized assistant of the clerk.
DNC V. HOBBS 207
(c) In either (a) or (b), a member of the
immediate family of the voter including
a father-in-law, mother-in-law, brother-
in-law, sister-in-law, son-in-law,
daughter-in-law, grandparent, or
grandchild or a person residing in the
voter’s household may mail or deliver
a ballot to the clerk for the voter.
(d) You may request by telephone that
the clerk who issued the ballot provide
assistance in returning the ballot. The
clerk is required to provide assistance if
you are unable to return your absent
voter ballot as specified in (a), (b), or
(c) above, if it is before 5 p.m. on the
Friday immediately preceding the
election, and if you are asking the clerk
to pickup the absent voter ballot within
the jurisdictional limits of the city,
township, or village in which you are
registered. Your absent voter ballot will
then be picked up by the clerk or an
election assistant sent by the clerk. All
persons authorized to pick up absent
voter ballots are required to carry
credentials issued by the clerk. If using
this absent voter ballot return method,
do not give your ballot to anyone until
you have checked their credentials. . . .
208 DNC V. HOBBS
All of the following actions are
violations of the Michigan election law
and are illegal in this state: . . . .
(4) For a person other than those listed
in these instructions to return, offer to
return, agree to return, or solicit to
return an absent voter ballot to the
clerk.
Minnesota Minn. Stat. Ann. § 203B.08 subd. 1
(West 2015):
The voter may designate an agent to
deliver in person the sealed absentee
ballot return envelope to the county
auditor or municipal clerk or to deposit
the return envelope in the mail. An
agent may deliver or mail the return
envelopes of not more than three voters
in any election. Any person designated
as an agent who tampers with either the
return envelope or the voted ballots or
does not immediately mail or deliver
the return envelope to the county
auditor or municipal clerk is guilty of a
misdemeanor.
Mississippi Miss. Code Ann. § 23-15-631(f) (West
2019):
Any voter casting an absentee ballot
who declares that he or she requires
assistance to vote by reason of
DNC V. HOBBS 209
blindness, temporary or permanent
physical disability or inability to read or
write, shall be entitled to receive
assistance in the marking of his or her
absentee ballot and in completing the
affidavit on the absentee ballot
envelope. The voter may be given
assistance by anyone of the voter’s
choice other than a candidate whose
name appears on the absentee ballot
being marked, the spouse, parent or
child of a candidate whose name
appears on the absentee ballot being
marked or the voter’s employer, an
agent of that employer or a union
representative; however, a candidate
whose name is on the ballot or the
spouse, parent or child of such
candidate may provide assistance upon
request to any voter who is related
within the first degree. In order to
ensure the integrity of the ballot, any
person who provides assistance to an
absentee voter shall be required to sign
and complete the “Certificate of Person
Providing Voter Assistance” on the
absentee ballot envelope.
Missouri Mo. Ann. Stat. § 115.291(2) (West
2018):
Except as provided in subsection 4 of
this section, each absentee ballot that is
not cast by the voter in person in the
210 DNC V. HOBBS
office of the election authority shall be
returned to the election authority in the
ballot envelope and shall only be
returned by the voter in person, or in
person by a relative of the voter who is
within the second degree of
consanguinity or affinity, by mail or
registered carrier or by a team of
deputy election authorities; except that
covered voters, when sent from a
location determined by the secretary of
state to be inaccessible on election day,
shall be allowed to return their absentee
ballots cast by use of facsimile
transmission or under a program
approved by the Department of Defense
for electronic transmission of election
materials.
Montana Mont. Code Ann. § 13-13-201 (West
2019):
(1) A legally registered elector or
provisionally registered elector is
entitled to vote by absentee ballot as
provided for in this part.
(2) The elector may vote absentee by:
(a) marking the ballot in the manner
specified;
DNC V. HOBBS 211
(b) placing the marked ballot in the
secrecy envelope, free of any
identifying marks;
(c) placing the secrecy envelope
containing one ballot for each election
being held in the signature envelope;
(d) executing the affirmation printed on
the signature envelope; and
(e) returning the signature envelope
with all appropriate enclosures by
regular mail, postage paid, or by
delivering it to:
(i) the election office;
(ii) a polling place within the elector’s
county;
(iii) pursuant to 13-13-229, the absentee
election board or an authorized election
official; or
(iv) in a mail ballot election held
pursuant to Title 13, chapter 19, a
designated place of deposit within the
elector’s county.
(3) Except as provided in 13-21-206
and 13-21-226, in order for the ballot to
be counted, each elector shall return it
212 DNC V. HOBBS
in a manner that ensures the ballot is
received prior to 8 p.m. on election day.
Nebraska Neb. Rev. Stat. § 32-943(2) (West
2019):
A candidate for office at such election
and any person serving on a campaign
committee for such a candidate shall
not act as an agent for any registered
voter requesting a ballot pursuant to
this section unless such person is a
member of the registered voter’s
family. No person shall act as agent for
more than two registered voters in any
election.
Nevada Nev. Rev. Stat. Ann. § 293.330(4)
(West 2017):
[I]t is unlawful for any person to return
an absent ballot other than the voter
who requested the absent ballot or, at
the request of the voter, a member of
the voter’s family. A person who
returns an absent ballot and who is a
member of the family of the voter who
requested the absent ballot shall, under
penalty of perjury, indicate on a form
prescribed by the county clerk that the
person is a member of the family of the
voter who requested the absent ballot
and that the voter requested that the
person return the absent ballot. A
DNC V. HOBBS 213
person who violates the provisions of
this subsection is guilty of a category E
felony . . . .
New New Hampshire recently enacted
Hampshire legislation adding greater specificity to
is provision governing the delivery of
absentee ballots—N.H. Rev. Stat. Ann.
§ 657:17. The new statute will read:
I. . . . . The voter or the person assisting
a blind voter or voter with a disability
shall then endorse on the outer
envelope the voter’s name, address, and
voting place. The absentee ballot shall
be delivered to the city or town clerk
from whom it was received in one of
the following ways:
(a) The voter or the voter’s delivery
agent may personally deliver the
envelope; or
(b) The voter or the person assisting the
blind voter or voter with a disability
may mail the envelope to the city or
town clerk, with postage affixed.
II. As used in this section, “delivery
agent” means:
214 DNC V. HOBBS
(a) The voter’s spouse, parent, sibling,
child, grandchild, father-in-law,
mother-in-law, son-in-law, daughter-in-
law, stepparent, stepchild; or
(b) If the voter is a resident of a nursing
home as defined in RSA 151–A:1, IV,
the nursing home administrator,
licensed pursuant to RSA 151–A:2, or
a nursing home staff member
designated in writing by the
administrator to deliver ballots; or
(c) If the voter is a resident of a
residential care facility licensed
pursuant to RSA 151:2, I(e) and
described in RSA 151:9, VII(a)(1) and
(2), the residential care facility
administrator, or a residential care
facility staff member designated in
writing by the administrator to deliver
ballots; or
(d) A person assisting a blind voter or a
voter with a disability who has signed a
statement on the affidavit envelope
acknowledging the assistance.
III. The city or town clerk, or ward
clerk on election day at the polls, shall
not accept an absentee ballot from a
delivery agent unless the delivery agent
completes a form provided by the
DNC V. HOBBS 215
secretary of state, which shall be
maintained by the city or town clerk,
and the delivery agent presents a
government-issued photo identification
or has his or her identity verified by the
city or town clerk. Absentee ballots
delivered through the mail or by the
voter’s delivery agent shall be received
by the town, city, or ward clerk no later
than 5:00 p.m. on the day of the
election. A delivery agent who is
assisting a voter who is blind or who
has a disability pursuant to this section
may not personally deliver more than 4
absentee ballots in any election, unless
the delivery agent is a nursing home or
residential care facility administrator,
an administrator designee, or a family
member, each as authorized by this
section.
New Jersey N.J. Stat. Ann. § 19:63-4(a) (West
2015):
A qualified voter is entitled to apply for
and obtain a mail-in ballot by
authorized messenger, who shall be so
designated over the signature of the
voter and whose printed name and
address shall appear on the application
in the space provided. The authorized
messenger shall be a family member or
a registered voter of the county in
which the application is made and shall
216 DNC V. HOBBS
place his or her signature on the
application in the space so provided in
the presence of the county clerk or the
designee thereof. No person shall serve
as an authorized messenger or as a
bearer for more than three qualified
voters in an election. No person who is
a candidate in the election for which the
voter requests a mail-in ballot shall be
permitted to serve as an authorized
messenger or bearer. The authorized
messenger shall show a photo
identification card to the county clerk,
or the designee thereof, at the time the
messenger submits the application
form. The county clerk or the designee
thereof shall authenticate the signature
of the authorized messenger in the
event such a person is other than a
family member, by comparing it with
the signature of the person appearing on
a State of New Jersey driver’s license,
or other identification issued or
recognized as official by the federal
government, the State, or any of its
political subdivisions, providing the
identification carries the full address
and signature of the person. After the
authentication of the signature on the
application, the county clerk or the
designee thereof is authorized to deliver
to the authorized messenger a ballot to
be delivered to the qualified voter.
DNC V. HOBBS 217
New Mexico N.M. Stat. Ann. § 1-6-10.1 (West
2019):
A. A voter, caregiver to that voter or
member of that voter’s immediate
family may deliver that voter’s
absentee ballot to the county clerk in
person or by mail; provided that the
voter has subscribed the official
mailing envelope of the absentee ballot.
B. As used in this section, “immediate
family” means the spouse, children,
parents or siblings of a voter.
New York N.Y. Elec. Law § 8-410 (McKinney
2019):
The absentee voter shall mark an
absentee ballot as provided for paper
ballots or ballots prepared for counting
by ballot counting machines. He shall
make no mark or writing whatsoever
upon the ballot, except as above
prescribed, and shall see that it bears no
such mark or writing. He shall make no
mark or writing whatsoever on the
outside of the ballot. After marking the
ballot or ballots he shall fold each such
ballot and enclose them in the envelope
and seal the envelope. He shall then
take and subscribe the oath on the
envelope, with blanks properly filled in.
The envelope, containing the ballot or
218 DNC V. HOBBS
ballots, shall then be mailed or
delivered to the board of elections of
the county or city of his residence.
North Carolina N.C. Gen. Stat. Ann. § 163A-
1310(b)(1) (West 2018):
All ballots issued under the provisions
of this Part and Part 2 of Article 21 of
this Chapter shall be transmitted by
mail or by commercial courier service,
at the voter’s expense, or delivered in
person, or by the voter’s near relative or
verifiable legal guardian and received
by the county board not later than 5:00
p.m. on the day of the statewide
primary or general election or county
bond election. Ballots issued under the
provisions of Part 2 of Article 21 of this
Chapter may also be electronically
transmitted.
North Dakota N.D. Cent. Code Ann. § 16.1-07-08(1)
(West 2019):
Upon receipt of an application for an
official ballot properly filled out and
duly signed, or as soon thereafter as the
official ballot for the precinct in which
the applicant resides has been prepared,
the county auditor, city auditor, or
business manager of the school district,
as the case may be, shall send to the
absent voter by mail, at the expense of
DNC V. HOBBS 219
the political subdivision conducting the
election, one official ballot, or
personally deliver the ballot to the
applicant or the applicant’s agent,
which agent may not, at that time, be a
candidate for any office to be voted
upon by the absent voter. The agent
shall sign the agent’s name before
receiving the ballot and deposit with the
auditor or business manager of the
school district, as the case may be,
authorization in writing from the
applicant to receive the ballot or
according to requirements set forth for
signature by mark. The auditor or
business manager of the school district,
as the case may be, may not provide an
absent voter’s ballot to a person acting
as an agent who cannot provide a
signed, written authorization from an
applicant. No person may receive
compensation, including money, goods,
or services, for acting as an agent for an
elector, nor may a person act as an
agent for more than four electors in any
one election. A voter voting by
absentee ballot may not require the
political subdivision providing the
ballot to bear the expense of the return
postage for an absentee ballot.
220 DNC V. HOBBS
Northern 1 N. Mar. I. Code § 6212(a) (2010):
Mariana Islands
The Commission shall provide to any
registered voter entitled to vote by
absentee ballot and who applied for
one, an official ballot, a ballot
envelope, an affidavit prescribed by the
Commission, and a reply envelope. The
absentee voter shall mark the ballot in
the usual manner provided by law and
in a manner such that no other person
can know how the ballot is marked. The
absentee voter shall then deposit the
ballot in the ballot envelope and
securely seal it. The absentee voter
shall then complete and execute the
affidavit. The ballot envelope and the
affidavit shall then be enclosed and
sealed in the covering reply envelope
and mailed via standard U.S. First Class
Mail only or sent by commercial
courier service to the commission at the
expense of the voter. Such ballots and
affidavits will not be counted by the
Commission unless mailed. For the
purpose of this part, the word “mailed”
includes ballots and affidavits sent
through the postal or courier services.
Ohio Ohio Rev. Code Ann. § 3509.05(A)
(West 2016):
The elector shall mail the identification
envelope to the director from whom it
DNC V. HOBBS 221
was received in the return envelope,
postage prepaid, or the elector may
personally deliver it to the director, or
the spouse of the elector, the father,
mother, father-in-law, mother-in-law,
grandfather, grandmother, brother, or
sister of the whole or half blood, or the
son, daughter, adopting parent, adopted
child, stepparent, stepchild, uncle, aunt,
nephew, or niece of the elector may
deliver it to the director.
Oklahoma Okla. Stat. Ann. tit. 26, § 14-108(C)
(West 2019):
Any voter who hand delivers his or her
ballot as provided in subsection A of
this section shall provide proof of
identity to the county election board
and shall hand deliver the ballot no
later than the end of regular business
hours on the day prior to the date of the
election. For purposes of this section,
“proof of identity” shall have the same
meaning as used in subsection A of
Section 7-114 of this title.
Oregon Or. Rev. Stat. Ann. § 254.470(6) (West
2018):
(6)(a) Upon receipt of any ballot
described in this section, the elector
shall mark the ballot, sign the return
identification envelope supplied with
222 DNC V. HOBBS
the ballot and comply with the
instructions provided with the ballot.
(b) The elector may return the marked
ballot to the county clerk by United
States mail or by depositing the ballot
at the office of the county clerk, at any
place of deposit designated by the
county clerk or at any location
described in ORS 254.472 or 254.474.
(c) The ballot must be returned in the
return identification envelope. If the
elector returns the ballot by mail, the
elector must provide the postage.
(d) Subject to paragraph (e) of this
subsection, if a person returns a ballot
for an elector, the person shall deposit
the ballot in a manner described in
paragraph (b) of this subsection not
later than two days after receiving the
ballot.
Pennsylvania 25 Pa. Stat. and Cons. Stat. Ann.
§ 3146.6(a)(1) (West 2019) (footnote
omitted):
Any elector who submits an Emergency
Application and receives an absentee
ballot in accordance with section
1302.1(a.2) or (c) shall mark the ballot
on or before eight o’clock P.M. on the
day of the primary or election. This
DNC V. HOBBS 223
envelope shall then be placed in the
second one, on which is printed the
form of declaration of the elector, and
the address of the elector’s county
board of election and the local election
district of the elector. The elector shall
then fill out, date and sign the
declaration printed on such envelope.
Such envelope shall then be securely
sealed and the elector shall send same
by mail, postage prepaid, except where
franked, or deliver it in person to said
county board of election.
Puerto Rico P. R. Laws Ann. tit. 16, § 4177 (2010):
Any voter entitled to vote as an
absentee voter in a specific election, as
established in § 4176 of this title, shall
cast his/her vote in accordance with the
procedure provided by the Commission
through regulations. Only those
absentee ballots sent on or before an
election, and received on or before the
last day of general canvass for that
election, shall be considered validly
cast pursuant to this Section. The
Commission shall establish through
regulations the manner in which the
mailing date of absentee ballots shall be
validated.
Rhode Island 17 R.I. Gen. Laws Ann. § 17-20-2.1(d)
(West 2019):
224 DNC V. HOBBS
In addition to those requirements set
forth elsewhere in this chapter, a mail
ballot, in order to be valid, must have
been cast in conformance with the
following procedures:
(1) All mail ballots issued pursuant to
subdivision 17-20-2(1) shall be mailed
to the elector at the Rhode Island
address provided by the elector on the
application. In order to be valid, the
signature on all certifying envelopes
containing a voted ballot must be made
before a notary public or before two (2)
witnesses who shall set forth their
addresses on the form.
(2) All applications for mail ballots
pursuant to § 17-20-2(2) must state
under oath the name and location of the
hospital, convalescent home, nursing
home, or similar institution where the
elector is confined. All mail ballots
issued pursuant to subdivision 17-20-
2(2) shall be delivered to the elector at
the hospital, convalescent home,
nursing home, or similar institution
where the elector is confined; and the
ballots shall be voted and witnessed in
conformance with the provisions of
§ 17-20-14.
DNC V. HOBBS 225
(3) All mail ballots issued pursuant to
subdivision 17-20-2(3) shall be mailed
to the address provided by the elector
on the application or sent to the board
of canvassers in the city or town where
the elector maintains his or her voting
residence. In order to be valid, the
signature of the elector on the certifying
envelope containing voted ballots does
not need to be notarized or witnessed.
Any voter qualified to receive a mail
ballot pursuant to subdivision 17-20-
2(3) shall also be entitled to cast a
ballot pursuant to the provisions of
United States Public Law 99-410
(“UOCAVA Act”).
(4) All mail ballots issued pursuant to
subdivision 17-20-2(4) may be mailed
to the elector at the address within the
United States provided by the elector
on the application or sent to the board
of canvassers in the city or town where
the elector maintains his or her voting
residence. In order to be valid, the
signature on all certifying envelopes
containing a voted ballot must be made
before a notary public, or other person
authorized by law to administer oaths
where signed, or where the elector
voted, or before two (2) witnesses who
shall set forth their addresses on the
form. In order to be valid, all ballots
226 DNC V. HOBBS
sent to the elector at the board of
canvassers must be voted in
conformance with the provisions of
§ 17-20-14.2.
South Carolina S.C. Code Ann. § 7-15-385 (2019):
Upon receipt of the ballot or ballots, the
absentee ballot applicant must mark
each ballot on which he wishes to vote
and place each ballot in the single
envelope marked “Ballot Herein”
which in turn must be placed in the
return-addressed envelope. The
applicant must then return the return-
addressed envelope to the board of
voter registration and elections by mail,
by personal delivery, or by authorizing
another person to return the envelope
for him. The authorization must be
given in writing on a form prescribed
by the State Election Commission and
must be turned in to the board of voter
registration and elections at the time the
envelope is returned. The voter must
sign the form, or in the event the voter
cannot write because of a physical
handicap or illiteracy, the voter must
make his mark and have the mark
witnessed by someone designated by
the voter. The authorization must be
preserved as part of the record of the
election, and the board of voter
registration and elections must note the
DNC V. HOBBS 227
authorization and the name of the
authorized returnee in the record book
required by Section 7-15-330. A
candidate or a member of a candidate’s
paid campaign staff including
volunteers reimbursed for time
expended on campaign activity is not
permitted to serve as an authorized
returnee for any person unless the
person is a member of the voter’s
immediate family as defined in Section
7-15-310. The oath set forth in Section
7-15-380 must be signed and witnessed
on each returned envelope. The board
of voter registration and elections must
record in the record book required by
Section 7-15-330 the date the return-
addressed envelope with witnessed oath
and enclosed ballot or ballots is
received by the board. The board must
securely store the envelopes in a locked
box within the office of the board of
voter registration and elections.
South Dakota S.D. Codified Laws § 12-19-2.2 (2019):
If a person is an authorized messenger
for more than one voter, he must notify
the person in charge of the election of
all voters for whom he is a messenger.
Tennessee Tenn. Code Ann. § 2-6-202(e) (West
2017):
228 DNC V. HOBBS
After receiving the absentee voting
supplies and completing the ballot, the
voter shall sign the appropriate affidavit
under penalty of perjury. The effect of
the signature is to verify the
information as true and correct and that
the voter is eligible to vote in the
election. The voter shall then mail the
ballot.
Texas Tex. Elec. Code Ann. § 86.006(f) (West
2017) (footnote omitted):
A person commits an offense if the
person knowingly possesses an official
ballot or official carrier envelope
provided under this code to another.
Unless the person possessed the ballot
or carrier envelope with intent to
defraud the voter or the election
authority, this subsection does not
apply to a person who, on the date of
the offense, was:
(1) related to the voter within the
second degree by affinity or the third
degree by consanguinity, as determined
under Subchapter B, Chapter 573,
Government Code;
(2) physically living in the same
dwelling as the voter;
DNC V. HOBBS 229
(3) an early voting clerk or a deputy
early voting clerk;
(4) a person who possesses a ballot or
carrier envelope solely for the purpose
of lawfully assisting a voter who was
eligible for assistance under Section
86.010 and complied fully with:
(A) Section 86.010; and
(B) Section 86.0051, if assistance was
provided in order to deposit the
envelope in the mail or with a common
or contract carrier;
(5) an employee of the United States
Postal Service working in the normal
course of the employee’s authorized
duties; or
(6) a common or contract carrier
working in the normal course of the
carrier’s authorized duties if the official
ballot is sealed in an official carrier
envelope that is accompanied by an
individual delivery receipt for that
particular carrier envelope.
Texas Tex. Elec. Code Ann. § 86.0052(a)(1)
(West 2013) (making it a crime if a
person “compensates another person for
depositing the carrier envelope in the
mail or with a common or contract
230 DNC V. HOBBS
carrier as provided by Section
86.0051(b), as part of any performance-
based compensation scheme based on
the number of ballots deposited or in
which another person is presented with
a quota of ballots to deposit”).
Utah Utah Code Ann. § 20A-3-306 (West
2019):
(1)(a) Except as provided by Section
20A-1-308, to vote a mail-in absentee
ballot, the absentee voter shall:
(i) complete and sign the affidavit on
the envelope;
(ii) mark the votes on the absentee
ballot;
(iii) place the voted absentee ballot in
the envelope;
(iv) securely seal the envelope; and
(v) attach postage, unless voting in
accordance with Section 20A-3-302,
and deposit the envelope in the mail or
deliver it in person to the election
officer from whom the ballot was
obtained.
(b) Except as provided by Section 20A-
1-308, to vote an absentee ballot in
DNC V. HOBBS 231
person at the office of the election
officer, the absent voter shall:
(i) complete and sign the affidavit on
the envelope;
(ii) mark the votes on the absent-voter
ballot;
(iii) place the voted absent-voter ballot
in the envelope;
(iv) securely seal the envelope; and
(v) give the ballot and envelope to the
election officer.
(2) Except as provided by Section 20A-
1-308, an absentee ballot is not valid
unless:
(a) in the case of an absentee ballot that
is voted in person, the ballot is:
(i) applied for and cast in person at the
office of the appropriate election officer
before 5 p.m. no later than the Tuesday
before election day; or
(ii) submitted on election day at a
polling location in the political
subdivision where the absentee voter
resides;
232 DNC V. HOBBS
(b) in the case of an absentee ballot that
is submitted by mail, the ballot is:
(i) clearly postmarked before election
day, or otherwise clearly marked by the
post office as received by the post
office before election day; and
(ii) received in the office of the election
officer before noon on the day of the
official canvass following the election;
or
(c) in the case of a military-overseas
ballot, the ballot is submitted in
accordance with Section 20A-16-404.
(3) An absentee voter may submit a
completed absentee ballot at a polling
location in a political subdivision
holding the election, if the absentee
voter resides in the political
subdivision.
(4) An absentee voter may submit an
incomplete absentee ballot at a polling
location for the voting precinct where
the voter resides, request that the ballot
be declared spoiled, and vote in person.
Vermont Vt. Stat. Ann. tit. 17, § 2543 (West
2019):
DNC V. HOBBS 233
(a) After marking the ballots and
signing the certificate on the envelope,
the early or absentee voter to whom the
same are addressed shall return the
ballots to the clerk of the town in which
he or she is a voter, in the manner
prescribed, except that in the case of a
voter to whom ballots are delivered by
justices, the ballots shall be returned to
the justices calling upon him or her, and
they shall deliver them to the town
clerk.
(b) Once an early voter absentee ballot
has been returned to the clerk in the
envelope with the signed certificate, it
shall be stored in a secure place and
shall not be returned to the voter for
any reason.
(c) If a ballot includes more than one
page, the early or absentee voter need
only return the page upon which the
voter has marked his or her vote.
(d)(1) All early voter absentee ballots
returned as follows shall be counted:
(A) by any means, to the town clerk’s
office before the close of business on
the day preceding the election;
234 DNC V. HOBBS
(B) by mail, to the town clerk’s office
before the close of the polls on the day
of the election; and
(C) by hand delivery to the presiding
officer at the voter’s polling place.
(2) An early voter absentee ballot
returned in a manner other than those
set forth in subdivision (1) of this
subsection shall not be counted.
Virgin Islands V.I. Code Ann. tit. 18, § 665 (2018):
(a) An absentee who has received an
absentee ballot may vote by mailing or
causing to be delivered to the board of
elections for the proper election district
such ballot marked and sworn to, as
follows:
After marking the ballot, the voter shall
enclose and seal it in the envelope
provided for that purpose. He shall then
swear and subscribe to a self-
administered oath which shall be
provided to the absentee on a printed
form along with the absentee ballot and
he shall further execute the affidavit on
such envelope and shall enclose and
seal the envelope containing the ballot
in the return mailing envelope printed,
as provided in paragraph 3 of
subsection (a) of section 663 of this
DNC V. HOBBS 235
title, with the name and address of the
board of elections for the election
district in which he desires to vote,
endorse thereon his name and return
address, and shall then mail the
envelope, or cause it to be delivered, to
the board of elections; provided that
such envelope must be received by the
board no later than ten days after the
day of election for the absentee vote to
be counted. Absentee ballots received
from overseas in franked envelopes, or
from persons who are members of the
Uniformed Services of the United
States or a spouse of any member of the
Uniformed Services of the United
States, shall be counted if they are
received by the board no later than ten
(10) days after the day of the election.
In the case of a recount authorized by
the board, any ballot received by the
board no later than 5 p.m. the day
before the recount shall be counted.
(b) Any envelope containing an
absentee ballot mistakenly mailed by
the absentee voter to the Supervisor of
Elections contrary to the provisions of
this section shall be mailed or delivered
by the Supervisor of Elections to the
proper board of elections if it can be so
mailed or delivered by him before the
time for the closing of the polls on the
236 DNC V. HOBBS
day of election, and if the proper board
can be determined without breaking
open the inner envelope containing the
ballot.
(c) All mailing envelopes containing
absentee ballots received by a board of
elections under this section, whether
received in sufficient time for the
ballots to be counted as provided in this
chapter, or not, shall be stamped or
endorsed by a member of the board or
the clerk with the date of their receipt in
the board’s office, and, if received on
the day of election, with the actual time
of day received, and such record shall
be signed or initialed by the board
member or clerk making it.
Virginia Va. Code Ann. § 24.2-707(A) (West
2019):
After the voter has marked his absentee
ballot, he shall (a) enclose the ballot in
the envelope provided for that purpose,
(b) seal the envelope, (c) fill in and sign
the statement printed on the back of the
envelope in the presence of a witness,
who shall sign the same envelope,
(d) enclose the ballot envelope and any
required assistance form within the
envelope directed to the general
registrar, and (e) seal that envelope and
mail it to the office of the general
DNC V. HOBBS 237
registrar or deliver it personally to the
general registrar. A voter’s failure to
provide in the statement on the back of
the envelope his full middle name or
his middle initial shall not be a material
omission, rendering his ballot void,
unless the voter failed to provide in the
statement on the back of the envelope
his full first and last name. A voter’s
failure to provide the date, or any part
of the date, including the year, on
which he signed the statement printed
on the back of the envelope shall not be
considered a material omission and
shall not render his ballot void. For
purposes of this chapter, “mail” shall
include delivery by a commercial
delivery service, but shall not include
delivery by a personal courier service
or another individual except as
provided by §§ 24.2-703.2 and 24.2-
705.
Washington Wash. Rev. Code Ann.
§ 29A.40.091(4) (West 2019):
The voter must be instructed to either
return the ballot to the county auditor
no later than 8:00 p.m. the day of the
election or primary, or mail the ballot to
the county auditor with a postmark no
later than the day of the election or
primary. Return envelopes for all
election ballots must include prepaid
238 DNC V. HOBBS
postage. Service and overseas voters
must be provided with instructions and
a privacy sheet for returning the ballot
and signed declaration by fax or email.
A voted ballot and signed declaration
returned by fax or email must be
received by 8:00 p.m. on the day of the
election or primary.
West Virginia W. Va. Code Ann. § 3-3-5(k) (West
2010):
Absentee ballots which are hand
delivered are to be accepted if they are
received by the official designated to
supervise and conduct absentee voting
no later than the day preceding the
election: Provided, That no person may
hand deliver more than two absentee
ballots in any election and any person
hand delivering an absentee ballot is
required to certify that he or she has not
examined or altered the ballot. Any
person who makes a false certification
violates the provisions of article nine of
this chapter and is subject to those
provisions.
Wisconsin Wis. Stat. Ann. § 6.87(4)(b) (West
2019):
The envelope shall be mailed by the
elector, or delivered in person, to the
DNC V. HOBBS 239
municipal clerk issuing the ballot or
ballots.
Wyoming Wyo. Stat. Ann. § 22-9-113 (West
2019):
Upon receipt, a qualified elector shall
mark the ballot and sign the affidavit.
The ballot shall then be sealed in the
inner ballot envelope and mailed or
delivered to the clerk.