Dnc v. Katie Hobbs

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 elim

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