# Dnc v. Katie Hobbs

> Court of Appeals for the Ninth Circuit · January 27, 2020

URL: https://www.frixlaw.com/law-library/cases/4501758

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 27, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4501758

## How later opinions describe it (automated extraction)

- rejecting the claim that there is “a blanket right of registered voters to vote by absentee ballot” because “it is obvious that a federal court is not going to decree DNC V. HOBBS 157 weekend voting, multi-day voting, all-mail voting, or Internet voting”
- holding that a ballot will not be disqualified for a technical error

## Opinion text

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 polli

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4501758. Public record. Not legal advice.