Amicus Curiae Brief — Mark Brnovich, Attorney General of Arizona, et al., Petitioners v. Democratic National Committee, et al.

Supreme Court briefJun 1, 2020

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No. 19-1257

IN THE

Supreme Court of the United States

MARK BRNOVICH, ET AL.,

Petitioners,

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE HONEST ELECTIONS

PROJECT IN SUPPORT OF PETITIONERS

JEFFREY M. HARRIS

Counsel of Record

WILLIAM S. CONSOVOY

TIFFANY H. BATES

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

jeff@consovoymccarthy.com

June 1, 2020

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES...................................... iii

STATEMENT OF INTEREST ................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .............................................................. 1

ARGUMENT .............................................................. 4

The Court should grant certiorari

because the scope of Section 2’s results

test is a critically important issue that

has repeatedly evaded this Court’s

review ............................................................... 4

II.

The Ninth Circuit’s interpretation of

Section 2’s results test is untenable ............... 9

The Constitution gives states

broad leeway to adopt commonsense election integrity measures ........ 9

If Section 2 requires invalidation

of neutral state laws without proof

of intentional discrimination, then

the statute exceeds Congress’

enforcement power .............................. 12

If Section’s 2’s results test

requires states to pervasively

consider race in crafting election

laws, it also conflicts with the

Equal Protection Clause ..................... 18

III.

At a minimum, this Court should

interpret Section 2 to require a

substantial disparate impact and

evidence that the challenged law

caused the disparate impact ............... 19

The Court should also consider, and

reverse, the Ninth Circuit’s finding of

discriminatory intent..................................... 21

CONCLUSION ......................................................... 24

iii

TABLE OF AUTHORITIES

Cases

Abbott v. Veasey,

137 S. Ct. 612 (2017)........................................ 6, 7, 8

Ala. Legislative Black Caucus v. Alabama,

575 U.S. 254 (2015)..............................................1, 2

Allen v. Waller County,

No. 4:18-cv-3985 (S.D. Tex. 2018) ...........................9

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm'n, 135 S. Ct. 2652

(2015) ...................................................................... 10

Arizona v. Inter Tribal Council of Ariz.,

570 U.S. 1 (2013).................................................... 10

Burdick v. Takushi,

504 U.S. 428 (1992)................................................ 10

Bush v. Vera,

517 U.S. 952 (1996)............................................ 3, 14

Chisom v. Roemer,

501 U.S. 380 (1991)...................................... 1, 13, 14

City of Boerne v. Flores,

521 U.S. 507 (1997).......................................... 15, 20

City of Mobile v. Bolden,

446 U.S. 55 (1980)...................................... 12, 13, 14

Crawford v. Marion Cty. Election Bd.,

553 U.S. 181 (2008)...................................... 4, 10, 23

Farrakhan v. Washington,

359 F.3d 1116 (9th Cir. 2004)................................13

Frank v. Walker,

17 F. Supp. 3d 837 (E.D. Wis. 2014) ..................... 16

Frank v. Walker,

768 F.3d 744 (7th Cir. 2014)........................ 7, 16, 21

Georgia v. Ashcroft,

539 U.S. 461 (2003)................................................ 19

Kimel v. Florida Board of Regents,

528 U.S. 62 (2000).................................................. 15

League of Women Voters of N.C. v. North

Carolina, 769 F.3d 224 (4th Cir. 2014) ........... 16, 17

League of Women Voters v. Virginia State

Board of Elections, No. 6:20-cv-24 (W.D. Va

2020) .........................................................................9

LULAC v. Perry,

548 U.S. 399 (2009)................................................ 19

Mich. State A. Philip Randolph Inst. v.

Johnson, 2019 WL 4145547 (6th Cir. Jan.

14, 2019) ...................................................................6

Mich. State A. Philip Randolph Inst. v.

Johnson, 833 F.3d 656 (6th Cir. 2016) .............. 6, 16

Miller v. Johnson,

515 U.S. 900 (1995).......................................... 18, 19

Navajo Nation v. Hobbs,

No. 3:18-cv-8329 (D. Ariz. 2019) .............................9

N.E. Ohio Coal. for the Homeless v. Husted,

No. 2:06-CV-896, 2016 WL 3166251 (S.D.

Ohio June 7, 2016), aff’d in part and rev’d in

part, 837 F.3d 612 (6th Cir. 2016).........................16

North Carolina State Conference of the

NAACP v. Cooper, No. 1:18-cv-1034

(M.D.N.C. 2018) .......................................................9

North Carolina State Conf. of NAACP v.

McCrory, 831 F.3d 204 (4th Cir. 2016) ................. 17

North Carolina State Conf. of NAACP v.

McCrory, 997 F. Supp. 2d 322 (M.D.N.C.

2016) ....................................................................... 17

North Carolina v. North Carolina State

Conference of NAACP, 137 S. Ct. 1399

(2017) ........................................................................7

Northeast Ohio Coal. for the Homeless v.

Husted, 837 F.3d 612 (6th Cir. 2016) ................ 5, 16

Northwest Austin Mun. Utility Dist. No. One v.

Holder, 557 U.S. 193 (2009) .................................. 18

Ohio Dem. Party v. Husted,

834 F.3d 620 (6th Cir. 2016).............................. 6, 16

Ohio Org. Collab. v. Husted,

189 F. Supp. 3d 708 (S.D. Ohio), rev’d,

834 F.3d 620 (6th Cir. 2016).................................. 16

Ohio State Conf. of NAACP v. Husted,

768 F.3d 524 (6th Cir. 2014).......................... 5, 6, 16

Ohio State Conf. of NAACP v. Husted,

No. 14-3877, 2014 WL 10384647 (6th Cir.

Oct. 1, 2014) ....................................................... 5, 16

One Wis. Inst. v. Thomsen,

198 F. Supp. 3d 896 (W.D. Wis. 2016) .................. 16

Oregon v. Ice,

555 U.S. 160 (2009)................................................ 10

Pers. Adm'r of Mass. v. Feeney,

442 U.S. 256 (1979).......................................... 21, 22

Reno v. Bossier Parish School Bd.,

520 U.S. 471 (1997)................................................ 12

Ricci v. DeStefano,

557 U.S. 557 (2009).......................................... 18, 19

Shaw v. Reno,

509 U.S. 630 (1993).......................................... 12, 14

Shelby County, Ala. v. Holder,

570 U.S. 529 (2013)................................................ 22

Smiley v. Holm,

285 U.S. 355 (1932)................................................ 10

vii

South Carolina v. Katzenbach,

383 U.S. 301 (1966)................................................ 14

Sugarman v. Dougall,

413 U.S. 634 (1973)..................................................9

Texas Democratic Party v. Abbott,

No. 5:20-cv-438 (W.D. Tex. 2020) ............................9

Texas Dept. of Housing and Cmty. Affairs v.

Inclusive Cmty. Project, 135 S. Ct. 2507

(2015) ...................................................................... 18

United States ex rel. Att'y Gen. v. Del. &

Hudson Co., 213 U.S. 366 (1909) .......................... 20

United States v. Comstock,

560 U.S. 126 (2010)................................................ 14

United States v. Morrison,

529 U.S. 598 (2000)................................................ 14

University of Alabama v. Garrett,

531 U.S. 356 (2001)................................................ 15

Veasey v. Abbott,

830 F.3d 216 (5th Cir. 2016) (en banc) ......... passim

Veasey v. Abbott,

888 F.3d 792 (5th Cir. 2018)....................................7

Washington v. Davis,

426 U.S. 229 (1976).................................... 12, 17, 20

viii

Constitution and Statutes

U.S. Const. art. 1 § 4 ................................................. 10

52 U.S.C. §10301(a) ............................................... 1, 13

Other Authorities

ACLU, The Case for Restoring and Updating

the Voting Rights Act (2019) ....................................4

Carter-Baker Commission, Report of the

Comm’n on Federal Election Reform (2005) ... 11, 23

Federalist No. 59 (A. Hamilton) (Clinton

Rossiter, ed. 1961)..................................................10

U.S. Dep’t of Justice, Civil Rights Div., Section

2 of the Civil Rights Act, bit.ly/2XGRyuW ........... 13

STATEMENT OF INTEREST 1

The Honest Elections Project is a nonpartisan

organization devoted to supporting the right of every

lawful voter to participate in free and honest elections.

Through public engagement, advocacy, and publicinterest litigation, the Project defends the fair,

reasonable measures that voters put in place to

protect the integrity of the voting process. The Project

supports common-sense voting rules and opposes

efforts to reshape elections for partisan gain. It thus

has a significant interest in this important case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

As amended in 1982, Section 2 of the Voting

Rights Act allows a plaintiff to establish a violation if

the “standard, practice, or procedure” being

challenged is “imposed or applied … in a manner

which results in a denial or abridgement of the right

of any citizen of the United States to vote on account

of race or color.” 52 U.S.C. §10301(a) (emphasis

added). In other words, proof of a racially

discriminatory intent “is no longer required to prove a

Section 2 violation.” Chisom v. Roemer, 501 U.S. 380,

394 (1991). This results-without-discriminatoryintent theory of Section 2 has come to be known as the

“results test” or “results prong” liability. See, e.g., Ala.

1 No counsel for a party authored this brief in whole or in

part. No person or entity other than amicus, its members, or its

counsel made a monetary contribution intended to fund the

preparation or submission of this brief. All parties received

timely notice and have consented to the filing of this brief.

Legislative Black Caucus v. Alabama, 575 U.S. 254,

287 (2015) (Scalia, J., dissenting).

The scope of Section 2’s results test is a

tremendously important issue for the orderly

administration of elections. Every year, numerous

states,

counties,

municipalities,

and

other

government entities face Section 2 suits that often

seek sweeping changes to election laws. Yet this Court

has given little guidance about the proper

interpretation and application of the results test;

indeed, in the nearly 40 years since Congress adopted

that test, this Court has not considered a single

Section 2 case outside the context of “vote dilution”

challenges to at-large elections or redistricting plans.

As a result, the lower courts have struggled

with the proper framework for analyzing other types

of Section 2 cases, such as challenges to voteridentification laws, restrictions on third-party ballot

collection, rules for verifying absentee ballots, early

voting policies, and countless other election-related

laws. Although several major Section 2 cases have

escaped the Court’s review in recent years due to

legislative changes or disputes over litigation

authority, this petition squarely presents the relevant

issues in a case that reached final judgment in district

court based on a comprehensive and fully developed

record.

The Court should grant certiorari and reverse

the Ninth Circuit’s deeply problematic approach to

Section 2. The Ninth Circuit would effectively find

liability under the results test whenever a law would

have a racially disparate impact that is “more than de

minimis.” This Court has “never directly address[ed]

[Section 2’s] constitutionality.” Bush v. Vera, 517 U.S.

952, 990 (1996) (O’Connor, J., concurring). But if the

Ninth Circuit’s interpretation of the statute were

correct, Section 2 would be unconstitutional.

Invalidating a state’s neutral ballot integrity measure

based on a mere disparate impact would far exceed

Congress’ authority to enforce the Fourteenth and

Fifteenth Amendments, both of which are limited to

intentional discrimination. And the Ninth Circuit’s

“more than de minimis” approach would itself raise

serious constitutional concerns under the Equal

Protection Clause by placing racial considerations at

the forefront of every decision to pass, modify, or

repeal an election law.

At a minimum, this Court should construe

Section 2 to ameliorate these constitutional

infirmities. First, the Court should hold that Section 2

requires a disparate impact that is so substantial or

significant as to give rise to an inference of intentional

discrimination. Nearly every law will have some

differential effect on different racial groups, and the

Ninth Circuit’s “more than de minimis” approach

makes it far too easy for a court to invalidate even

neutral, common-sense election security measures.

Second, the Court should hold that any racial

disparities must have been caused by the challenged

law; without this critical requirement, it is impossible

to tell whether any alleged disparities were the result

of the law at issue or unrelated social or economic

conditions that are not attributable to state action.

Without a proper causation element, a state could find

itself liable under Section 2 for disparities it did

nothing to create.

Finally, this Court should reverse the Ninth

Circuit’s deeply flawed holding that Arizona’s ballotcollection

regulations

were

motivated

discriminatory intent. Much of the court’s analysis

turns on century-old history of Arizona’s territorial

and early statehood periods. And the court seemed to

infer discriminatory motive based on what it deemed

to be a lack of evidence supporting the ballot-collection

rules. But as the bipartisan Carter-Baker

Commission has recognized, there is a perfectly

rational, neutral, non-discriminatory basis for

Arizona’s law, which is to protect vulnerable citizens

from exploitation by paid third-party ballot collectors.

“While the most effective method of preventing

election fraud may well be debatable, the propriety of

doing so is perfectly clear.” Crawford v. Marion Cty.

Election Bd., 553 U.S. 181, 196 (2008) (plurality op.).

This Court should grant certiorari and affirm the

district court’s decision upholding all aspects of the

challenged laws.

ARGUMENT

The Court should grant certiorari because

the scope of Section 2’s results test is a

critically important issue that has

repeatedly evaded this Court’s review.

Since 2013, there have been at least 75 cases

filed against states, cities, counties, and other

government entities under Section 2 of the VRA. See

ACLU, The Case for Restoring and Updating the

Voting Rights Act 42 (2019) (collecting statistics); see

also Veasey v. Abbott, 830 F.3d 216, 247 n.37 (5th Cir.

2016) (en banc) (noting that “challenges to election

laws under Section 2 have increased” substantially in

the last decade). And, as explained further below,

Section 2’s results test is a remarkably powerful tool,

as it has been construed to allow invalidation of even

neutral state voting rules without proof of

discriminatory intent.

Yet, despite the importance of these issues, this

Court “has yet to consider a Section 2 vote-denial

claim after [Thornburg v.] Gingles,” a case decided

more than three decades ago. Northeast Ohio Coal. for

the Homeless v. Husted, 837 F.3d 612, 626 (6th Cir.

2016). Indeed, this Court has never addressed how

Section 2 applies outside the context of challenges to

at-large districts or redistricting plans. For example,

despite an abundance of litigation, see infra, this

Court has never addressed the interpretation or

application of Section 2 in the context of voter

identification laws, security measures for absentee

ballots, limits on paid ballot harvesting, or changes to

early or in-person voting. As a result, “[a] clear test for

Section 2 vote denial claims … has yet to emerge.”

Ohio State Conf. of NAACP v. Husted, 768 F.3d 524,

554 (6th Cir. 2014), vacated sub nom. Ohio State Conf.

of NAACP v. Husted, No. 14-3877, 2014 WL 10384647

(6th Cir. Oct. 1, 2014). The lower courts have

lamented the “unsettled … standard for …

adjudication” in these important cases. Northeast

Ohio Coal. for the Homeless, 837 F.3d at 626; see also

Veasey, 830 F.3d at 305 n.41.

Section 2 cases often escape this Court’s review

for reasons that have nothing to do with either the

merits or the importance of these issues. Some cases

never make it even to the petition stage because the

parties choose to end the litigation after stay

proceedings without completing the litigation on the

merits. See, e.g., Ohio State Conf. of NAACP, 768 F.3d

524 (parties settled after this Court granted a stay);

Ohio Dem. Party v. Husted, 834 F.3d 620 (6th Cir.

2016) (no certiorari petition filed after this Court

denied a stay); Mich. State A. Philip Randolph Inst. v.

Johnson, 833 F.3d 656 (6th Cir. 2016) (no certiorari

petition filed after this Court denied a stay). In other

instances, states have declined to seek certiorari after

changing the law at issue. See, e.g., Mich. State A.

Philip Randolph Inst. v. Johnson, 2019 WL 4145547

(6th Cir. Jan. 14, 2019) (granting motion to vacate

opinion as moot after voter initiative changed the

challenged law).

Even for those cases that do make it to the

petition stage, procedural or vehicle issues often keep

this Court from reaching the merits. Consider Abbott

v. Veasey, a high-profile Section 2 challenge to a Texas

voter-identification law. The district court held a nineday trial with dozens of witnesses before permanently

enjoining the law. The case then bounced back and

forth between the district court and the Fifth Circuit

for three years, culminating in a 203-page en banc

opinion by a sharply divided court. See 830 F.3d 216.

Texas petitioned for certiorari in 2016, but despite a

well-developed record and comprehensive discussion

of the legal issues by the Fifth Circuit, the district

court had not yet entered a final remedial order as to

the Section 2 claim. Although this Court denied

certiorari, the Chief Justice wrote separately to

emphasize that Texas could petition the Court for

review “again after entry of final judgment” because

“[t]he issues will be better suited for certiorari review

at that time.” See Abbott v. Veasey, 137 S. Ct. 612, 613

(2017) (Roberts, C.J., respecting denial of cert.). But

in 2018, Texas “passed a law designed to cure all the

flaws” of the previous statute, and the lawsuit was

dismissed later that year. Veasey v. Abbott, 888 F.3d

792, 795 (5th Cir. 2018).

That same Term, the Court also declined to

hear North Carolina v. North Carolina State

Conference of NAACP—a sweeping challenge to North

Carolina’s voter-identification, out-of-precinct voting,

and same-day registration laws. The Court denied

certiorari after receiving a “blizzard of filings” about

whether North Carolina’s Legislature or Attorney

General was the proper party “authorized to seek

review in this Court under North Carolina law.” North

Carolina v. North Carolina State Conference of

NAACP, 137 S. Ct. 1399, 1400 (2017) (Roberts, C.J.,

respecting denial of cert.). Once again, the scope of

Section 2’s results test evaded this Court’s review not

because the issue was unimportant but because of an

intra-state dispute over litigation authority that

posed serious obstacles to an orderly resolution of the

case. The Chief Justice reiterated that the denial of

certiorari “‘imports no expression of opinion upon the

merits of the case.’” Id. (citation omitted).

Finally, the Court also denied certiorari in

Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), which

involved a Section 2 challenge to Wisconsin’s voteridentification law. That case was complicated by a

number of intervening developments after the district

court issued its decision enjoining the challenged law.

Following the district court’s decision, Wisconsin

made significant changes to its enforcement policies,

including providing voters free identification cards

and issuing new rules that expanded the types of

documents that could be used to obtain identification.

See Br. in Opp., 2015 WL 512901, *13-17 (Feb. 6,

2015) (discussing “post-judgment issues” that

“complicate the record on appeal”).

Although the scope of Section 2 has evaded the

Court’s review in recent years, this case poses none of

the obstacles that led the Court to deny certiorari in

the cases discussed above. Arizona’s laws are the same

today as they were when they were first challenged.

The appeal was taken from a final judgment in district

court. There is no dispute about who has authority to

litigate on behalf of Arizona. And the record is as

developed as it will ever be: the district court held a

10-day trial and issued an 83-page opinion, and the

Ninth Circuit panel and en banc court issued a

combined 255 pages of opinions that comprehensively

address the relevant issues. At bottom, the critical

issues presented here about the scope and application

of Section 2 will never “be better suited for certiorari

review.” Veasey, 137 S. Ct. at 613 (Roberts, C.J.,

respecting denial of cert.).

This Court’s review is especially imperative

because Section 2 litigation has, if anything, only

continued to increase in recent years in terms of both

the number of cases and the breadth of the challenges.

A broad array of state voting laws across the country

are under currently attack. Just within the last few

years, parties have brought Section 2 challenges to

voter-identification requirements, see North Carolina

State Conference of the NAACP v. Cooper, No. 1:18-cv1034 (M.D.N.C. 2018); early voting locations, see Allen

v. Waller County, No. 4:18-cv-3985 (S.D. Tex. 2018);

Navajo Nation v. Hobbs, No. 3:18-cv-8329 (D. Ariz.

2019); witness requirements for absentee ballots, see

League of Women Voters v. Virginia State Board of

Elections, No. 6:20-cv-24 (W.D. Va 2020); language

assistance laws, see Navajo Nation, No. 3:18-cv-8329;

and to all manner of “election conditions” in light of

Covid-19, see Texas Democratic Party v. Abbott, No.

5:20-cv-438 (W.D. Tex. 2020). The scope of liability

under Section 2’s results test is a question of profound

importance that is overdue for this Court’s

intervention.

II.

The Ninth Circuit’s interpretation of

Section 2’s results test is untenable.

The Constitution gives states broad

leeway to adopt common-sense

election integrity measures.

The Framers “intended the States to keep for

themselves, as provided in the Tenth Amendment, the

power to regulate elections.” Sugarman v. Dougall,

413 U.S. 634, 647 (1973). Alexander Hamilton flatly

rejected any idea to the contrary: “Suppose an article

had been introduced into the Constitution,

empowering the United States to regulate the

elections for the particular States, would any man

have hesitated to condemn it … as a premeditated

engine for the destruction of the State governments?”

Federalist No. 59 at 361 (A. Hamilton) (Clinton

Rossiter, ed. 1961). And the Constitution itself

textually commits to state legislatures the authority

to regulate the “Times, Places and Manner of holding

Elections.” U.S. Const. art. 1 § 4, cl. 1. In fact, the

Constitution not only commits this power to states,

but imposes a duty to exercise it. See Arizona v. Inter

Tribal Council of Ariz., 570 U.S. 1, 8 (2013). Given

that this broad power “‘embrace[s] authority to

provide a complete code for the conduct of

congressional elections,’” id. at 8-9 (quoting Smiley v.

Holm, 285 U.S. 355, 366 (1932)), it assuredly allows

states to adopt common-sense regulations to protect

the security and integrity of their election processes.

States employ many different methods to

regulate their elections, serving their intended “‘role’”

in our federalist system “as laboratories for

experimentation.’” Ariz. State Legislature v. Ariz.

Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2673

(2015). Courts “should not diminish that role absent

impelling reason to do so.” Oregon v. Ice, 555 U.S. 160,

171 (2009). As this Court has recognized, every

election law “invariably impose[s] some burden upon

individual voters.” Burdick v. Takushi, 504 U.S. 428,

433 (1992). And no citizen has a right to be free from

“the usual burdens of voting.” Crawford, 553 U.S. at

198. States can—and always have been able to—enact

rules governing the electoral process, a process “that

is necessarily structured to maintain the integrity of

the democratic system.” Burdick, 504 U.S. at 441.

The Arizona policies at issue here fall within

the heartland of state authority to ensure the

integrity of electoral process through neutral,

common-sense regulations. Arizona’s longstanding

out-of-precinct rule—which is similar to policies in a

majority of other states—provides that in-person,

Election Day voters must “cast their ballots in their

assigned precinct.” Pet. 6; Pet. App. 408-09. In turn,

precincts may only “count[] those ballots cast in the

correct precinct.” Pet. 6; Pet. App. 408-09. Voters who

fail to vote in the correct precinct may cast a

provisional ballot. Pet. 6; Pet App. 409, 452. That

policy “is important to the State’s precinct-based

election-day voting system,” and affects only fractions

of a percentage of voters who cast ballots in the wrong

precinct. Pet. 2, 16.

Second,

Arizona’s

ballot-collection

law

prohibits any “person from handling absentee ballots

other than the voter, an acknowledged family

member, the U.S. Postal Service or other legitimate

shipper, or election officials.” Pet. 2. This law

reasonably seeks “to prevent undue influence, fraud,

ballot tampering, and voter intimidation.” Pet. 6-7

(citation omitted). And it directly follows the

recommendations of the bipartisan Carter-Baker

Commission, which found that “[a]bsentee ballots

remain the largest source of potential voter fraud.”

Report of the Comm’n on Federal Election Reform 46

(2005). Once again, this is precisely the sort of neutral,

common-sense ballot integrity measure that is well

within a state’s discretion to enact.

If Section 2 requires invalidation of

neutral state laws without proof of

intentional discrimination, then the

statute

exceeds

Congress’

enforcement power.

The Ninth Circuit nonetheless invalidated both

challenged laws based on an expansive interpretation

of Section 2 that, if allowed to stand, would raise

serious constitutional questions. Understanding why

requires returning to the constitutional guarantees

that Section 2 is designed to protect. The “central

purpose” of the Fourteenth Amendment’s Equal

Protection Clause “is to prevent the States from

purposefully discriminating between individuals on

the basis of race.” Shaw v. Reno, 509 U.S. 630, 642

(1993); see also Washington v. Davis, 426 U.S. 229, 240

(1976) (violations of Fourteenth Amendment require

discriminatory purpose). The Fifteenth Amendment

likewise prohibits only those voting laws that draw

explicit racial classifications or are “motivated by a

discriminatory purpose.” City of Mobile v. Bolden, 446

U.S. 55, 62 (1980).

“As originally enacted,” Section 2 comported

with those first principles. Reno v. Bossier Parish

School Bd., 520 U.S. 471, 500 (1997). In its original

form, Section 2 was “an uncontroversial provision that

simply restated the prohibitions against ...

discrimination already contained in the Fifteenth

Amendment.” Id. Section 2 thus became a mechanism

for challenging intentionally discriminatory voting

restrictions. Deploying Section 2 this way—to protect

citizens’ Fourteenth and Fifteenth Amendment rights

to be free from intentional racial discrimination while

voting—raised no constitutional concerns.

But the statutory landscape changed

dramatically when Congress amended Section 2 in

1982 to abrogate Bolden. Section 2 now prohibits

States from “impos[ing] or appl[ying]” any “voting

qualification or prerequisite to voting or standard,

practice, or procedure … in a manner which results in

a denial or abridgement” of the right “to vote on

account of race or color.” 52 U.S.C. §10301(a) (formerly

42 U.S.C. §1973). Those changes meant that a

plaintiff now could establish a Section 2 violation “if

the evidence established that, in the context of the

‘totality of the circumstances of the electoral process,’

the standard, practice, or procedure being challenged

had the result of denying a racial or language minority

an equal opportunity to participate in the political

process.” U.S. Dep’t of Justice, Civil Rights Div.,

Section 2 of the Civil Rights Act, bit.ly/2XGRyuW. In

other words, “proof of” a racially discriminatory

“intent is no longer required to prove a Section 2

violation.” Chisom, 501 U.S. at 394.

The Fourth, Fifth, Sixth, Seventh, and Ninth

Circuits have applied a two-part “results test” that

finds a violation of Section 2 when an election policy:

(1) has disparate impact on a racial minority group;

and (2) that impact is related to the social and

historical conditions in the state. See, e.g., Hobbs, 948

F.3d at 1012. Notably, the “results test” does not

inquire into whether the state passed the election law

with a discriminatory intent. See Farrakhan v.

Washington, 359 F.3d 1116, 1121-24 (9th Cir. 2004)

(Kozinski, J., dissenting from denial of rehearing en

banc) (noting constitutional issues raised by a results

test that lacks an inquiry into discriminatory

purpose).

This Court has “never directly address[ed]

[Section 2’s] constitutionality.” Vera, 517 U.S. at 990

(O’Connor, J., concurring); see also Chisom, 501 U.S.

at 418 (Kennedy, J., dissenting) (noting that this

Court has not addressed “whether §2 of the Voting

Rights Act of 1965 … is consistent with the

requirements of the United States Constitution”). But

the Ninth Circuit’s decision here squarely presents

this issue. If Section 2 invalidates state laws without

proof of intentional discrimination, then Section 2 is

unconstitutional. “Congress has no power to act

unless the Constitution authorizes it to do so.” United

States v. Comstock, 560 U.S. 126, 159 (2010) (Thomas,

J., dissenting); see also United States v. Morrison, 529

U.S. 598, 607 (2000).

Congress passed the Voting Rights Act as an

exercise of its power to enforce the Reconstruction

Amendments. South Carolina v. Katzenbach, 383 U.S.

301, 327-28 (1966). The results test, as interpreted by

the Ninth Circuit, far exceeds that power. As noted,

the “central purpose” of the Fourteenth Amendment’s

Equal Protection Clause “is to prevent the States from

purposefully discriminating between individuals on

the basis of race.” Shaw, 509 U.S. at 642 (emphasis

added). Likewise, the Fifteenth Amendment prohibits

only laws that explicitly draw racial classifications or

that are “motivated by a discriminatory purpose.”

Bolden, 446 U.S. at 62.

When deciding whether Congress’ exercise of

power under the Reconstruction Amendments is

within its authority, this Court has assessed the

“congruence and proportionality between the injury to

be prevented or remedied and the means adopted to

that end.” City of Boerne v. Flores, 521 U.S. 507, 520

(1997). Congress “has been given the power ‘to

enforce,’ not the power to determine what constitutes

a constitutional violation.” Id. at 519. And “Congress

does not enforce a constitutional right by changing

what the right is.” Id.

Because, as interpreted by the Ninth Circuit,

Section 2’s results test invalidates neutral state

legislation—like the Arizona policies at issue here—

without a discriminatory intent, it necessarily fails

the test set forth in City of Boerne. In fact, this Court

invalidated the legislation at issue in City of Boerne

for substantially the same reason that Section 2, as

interpreted by the Ninth Circuit, is unconstitutional.

See id. at 535 (“In most cases, the state laws to which

[the legislation] applies are not ones which will have

been motivated by … bigotry.”).

City of Boerne does not stand alone in this

regard. This Court has invalidated multiple

congressional overreaches under the Reconstruction

Amendments that, like the Section 2 “results test,”

imposed liability that was “disproportionate to any

unconstitutional conduct that conceivably could be

targeted by” the legislation. Kimel v. Florida Board of

Regents, 528 U.S. 62, 83-91 (2000); see also University

of Alabama v. Garrett, 531 U.S. 356, 368-74 (2001)

(remedial enforcement legislation must target “a

pattern of unconstitutional discrimination” (emphasis

added)).

Defenders of the Ninth Circuit’s approach to

Section 2 would likely emphasize the second prong of

that court’s results test, which asks whether a

disparate impact is related to “social and historical

conditions” in the state. Pet. App. 38. Based on that

prong of the test, Respondents would likely argue that

Section 2 requires more than just a showing of a

statistical disparity in order to impose liability.

The second prong does nothing to ameliorate

the constitutional flaws of Section 2’s results test. In

fact, the “social and historical conditions” prong does

not appear to do any work at all. Nearly every case

amicus identified that found the first prong of the

results test satisfied—including this case—also found

that the second prong was met. See Hobbs, 948 F.3d

at 1037; Mich. State A. Philip Randolph Inst., 833

F.3d at 668-69; Veasey, 830 F.3d at 256-64; N.E. Ohio

Coal. for the Homeless v. Husted, No. 2:06-CV-896,

2016 WL 3166251, at *49-53 (S.D. Ohio June 7, 2016),

aff’d in part and rev’d in part, 837 F.3d 612 (6th Cir.

2016); Ohio Org. Collab. v. Husted, 189 F. Supp. 3d

708, 759-62 (S.D. Ohio), rev’d, 834 F.3d 620 (6th Cir.

2016); League of Women Voters, 769 F.3d at 245-47;

Ohio State Conf. of the NAACP, 768 F.3d at 556-57,

vacated by No. 14-3877, 2014 WL 10384647 (6th Cir.

2014); Frank v. Walker, 17 F. Supp. 3d 837, 877-79

(E.D. Wis.), rev’d, 768 F.3d 744 (7th Cir. 2014); One

Wis. Inst. v. Thomsen, 198 F. Supp. 3d 896, 957-60

(W.D. Wis. 2016).

Amicus identified only a single lower court

decision that found a statistical disparity but

concluded that it was not connected to “social and

historical conditions” in the state. See North Carolina

State Conf. of NAACP v. McCrory, 997 F. Supp. 2d

322, 432-33, 486 (M.D.N.C. 2016) aff’d in part and

rev’d in part sub nom. League of Women Voters of N.C.

v. North Carolina, 769 F.3d 224 (4th Cir. 2014)

(finding a disparity but also finding “that there has

been no violation of § 2 of the VRA”). However, the

Fourth Circuit later reversed that holding, concluding

that the district court “clearly erred in holding” that

the second prong was not met. North Carolina State

Conf. of NAACP v. McCrory, 831 F.3d 204, 233 (4th

Cir. 2016).

In sum, under several lower courts’ approach to

Section 2, any finding of a statistical disparity will

necessarily lead to the challenged law being

invalidated in the absence of even a hint of

discriminatory motive, animus, or intent. That

sweeping intrusion into core state prerogatives has

nothing to do with enforcing the actual rights

guaranteed by the Fourteenth and Fifteenth

Amendments. See Davis, 426 U.S. at 242 (mere

disparate impact “[s]tanding alone” does not suggest

an invidious racial classification that warrants strict

scrutiny). Section 2’s results test would be

unconstitutional if the statute actually means what

the Ninth Circuit says it does.

If Section’s 2’s results test requires

states to pervasively consider race

in crafting election laws, it also

conflicts with the Equal Protection

Clause.

The Equal Protection Clause’s “central

mandate” is “racial neutrality in governmental

decisionmaking.” Miller v. Johnson, 515 U.S. 900, 904

(1995). Accordingly, race cannot be the “predominant

factor” in fashioning election laws. Id. at 916; see also

Northwest Austin Mun. Utility Dist. No. One v.

Holder, 557 U.S. 193, 203 (2009). That principle

applies equally to “laws mandating that third

parties”—including state and local governments

“discriminate on the basis of race.” Ricci v. DeStefano,

557 U.S. 557, 594 (2009) (Scalia, J., concurring).

If Section’s 2’s results test prohibits states from

adopting neutral, common-sense ballot integrity

measures merely because they might have a racially

disparate impact, then race will be at the forefront of

every decision about whether to pass, repeal, or

modify a voting regulation. That is, “using Section 2

to rewrite racially neutral election laws will force

considerations of race on state lawmakers who will

endeavor to avoid litigation by eliminating any

perceived racial disparity in voting regulations.”

Veasey, 830 F.3d at 317 (Jones, J., concurring in part

and dissenting in part). The Ninth Circuit’s approach

to the results test would thus impermissibly require

“race to be … considered in a pervasive way.” Texas

Dept. of Housing and Cmty. Affairs v. Inclusive Cmty.

Project, 135 S. Ct. 2507, 2523 (2015). Indeed, it would

force every state to make race the predominant factor

in setting the rules governing how voters cast their

ballots. But Congress lacks a compelling interest in

forcing states and localities to engage in racial

discrimination merely to avoid a disparate impact.

Ricci, 557 U.S. at 594-95 (Scalia, J., concurring).

This Court’s redistricting precedents are

instructive. The Court has rejected interpretations of

Section 2 that “would unnecessarily infuse race into

virtually every redistricting.” LULAC v. Perry, 548

U.S. 399, 446 (2009). And Justice Kennedy has

observed that “encourag[ing] or ratify[ing] a course of”

conduct so inconsistent with the Equal Protection

Clause merely “to find compliance with a statutory

directive” would expose a “fundamental flaw” in

Section 2. Georgia v. Ashcroft, 539 U.S. 461, 491

(2003) (Kennedy, J., concurring).

Because the results test employed by the Ninth

Circuit finds a violation of Section 2 every time there

is more than a de minimis disparate racial impact,

states will be forced to “subordinate[] traditional raceneutral … principles … to racial considerations” in an

attempt to avoid any disparate racial impact of

otherwise neutral laws, which is itself a violation of

the Equal Protection Clause. Miller, 515 U.S. at 916.

At a minimum, this Court should

interpret Section 2 to require a

substantial disparate impact and

evidence that the challenged law

caused the disparate impact.

Although Section 2’s results test, as interpreted

by several lower courts, exceeds Congress’

enforcement authority and makes race a pervasive

factor in all election-related decisions, the statute can

be interpreted in ways that would ameliorate (if not

eliminate) these constitutional concerns. “[W]here a

statute is susceptible of two constructions, by one of

which grave and doubtful constitutional questions

arise and by the other of which such questions are

avoided, our duty is to adopt the latter.” United States

ex rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366,

408 (1909).

There are two potential interpretations of

Section 2 that would bring the statute more in line

with the congruence and proportionality analysis in

City of Boerne. First, this Court could clarify that the

first prong of the results test requires not just a “more

than de minimis” disparate impact, Pet. App. 44-46,

but a significant or overwhelming disparity. When a

disparity is sufficiently large, it may give rise to an

inference of “invidious discriminatory purpose.”

Davis, 426 U.S. at 242. But the mere fact that a law

“may affect a greater proportion of one race than of

another” cannot by itself show such a purpose. Id. It

is a rare law indeed that will have a perfectly

proportional impact across all racial groups. Yet the

Ninth Circuit’s approach would allow even relatively

small statistical disparities to be used to invalidate

neutral, non-discriminatory state laws—especially

given that, as noted above, the second prong of the test

has effectively become a rubber stamp. At a minimum,

this Court should establish a high threshold of

significance before a statistical disparity can be used

to open the door to liability under Section 2.

Second, the Court could also ameliorate the

constitutional flaws of Section 2 by clarifying that a

disproportionate burden on minority voters must have

been caused by the regulation at issue and not by

“‘socioeconomic conditions’” or a “‘history of

discrimination’” in the distant past. See Veasey, 830

F.3d at 311 (Jones, J., concurring in part and

dissenting in part). Rates of participation in the

political process may vary across racial groups, and “it

cannot be the case that pointing to a … disparity

related to a challenged voting practice is sufficient to

‘dismantle’ that practice.” Hobbs, 948 F.3d at 1051

(O’Scannlain, J., dissenting) (citing Frank, 768 F.3d at

754). That is, just because a disparity exists does not

necessarily mean that the challenged regulation

caused that disparity. As Judge Jones explained, a

“tailored causation analysis is imperative” because

otherwise a state could be found liable based on “racial

disparities it did not create.” Veasey, 830 F.3d at 31213 (Jones, J.) (cleaned up).

III.

The Court should also consider, and

reverse, the Ninth Circuit’s finding of

discriminatory intent.

This Court should also review, and reverse, the

Ninth Circuit’s finding of discriminatory intent.

“‘Discriminatory purpose’ … implies more than intent

as volition or intent as awareness of consequences.”

Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279

(1979). “It implies that the decisionmaker … selected

or reaffirmed a particular course of action at least in

part ‘because of,’ not merely ‘in spite of,’ its adverse

effects upon an identifiable group.” Id. (emphasis

added). A non-invidious classification must be upheld

unless the plaintiff can prove that the justification for

the law was an “obvious pretext” for discrimination—

i.e., that the law “can plausibly be explained only as a

[race]-based classification.” See id. at 272, 275.

The Ninth Circuit’s analysis of discriminatory

intent was riddled with errors that fundamentally

skewed the court’s analysis and conclusions. First, the

court relied heavily on “Arizona’s history of

discrimination” dating back to the 1800s, including

Manifest Destiny policies (mid-1800s), armed conflicts

with Indian tribes (1870s), the Treaty of Guadalupe

Hidalgo (1848), and Arizona’s constitutional

convention (1910). Pet. App. 50-54. But, of course,

“history did not end” with those unfortunate events

that occurred more than a century ago. Shelby County,

Ala. v. Holder, 570 U.S. 529, 552 (2013). If a state’s

discriminatory policies early in its history can be used

to show discriminatory intent in a challenge to a

modern law, then a cloud will be cast over the validity

of election laws in all 50 states. 2

The Ninth Circuit further suggested that,

because there was purportedly no evidence of ballotcollection fraud in Arizona, the entire law must have

been motivated by racial animus. See Pet. App. 101

(discussing purportedly “false” allegations of voter

fraud). But this Court has already rejected similar

arguments, holding that “[w]hile the most effective

method of preventing election fraud may well be

2 The Ninth Circuit also invoked alleged discriminatory

actions by Apache County in the 1970s, Pet. App. 64-65, which

are irrelevant for multiple reasons. In particular, the Ninth

Circuit made no attempt to explain why the actions of county

officials 40 years ago are relevant to the intent of state officials

today—especially given that Apache County comprises

approximately 0.1% of Arizona’s population.

debatable, the propriety of doing so is perfectly clear.”

Crawford, 553 U.S. at 196.

Moreover, the bipartisan Carter-Baker Report

should dispel any notion that ballot-collection laws

are pretextual or a solution in search of a problem. To

quote the Report, “[c]itizens who vote at home, at

nursing homes, at the workplace, or in church are

more susceptible to pressure, overt and subtle, or to

intimidation.” Carter-Baker Report 46. “States

therefore should reduce the risks of fraud and abuse in

absentee

voting

prohibiting

‘third-party’

organizations, candidates, and political party activists

from handling absentee ballots.” Id. (emphasis added).

The notion that Arizona’s neutral, common-sense

measures to ensure the integrity of its elections were

in fact motivated by a discriminatory purpose does not

withstand scrutiny.

CONCLUSION

The Court should grant the petition for

certiorari and reverse the decision below.

Respectfully submitted,