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

Nos. 19-1257 & 19-1258

In The

Supreme Court of the United States

____________________

MARK BRNOVICH, Arizona Attorney General, et al.,

Petitioners,

v.

DEMOCRATIC NATIONAL COMMITTEE, et al.,

Respondents.

____________________

ARIZONA REPUBLICAN PARTY, et al.,

Petitioners,

v.

DEMOCRATIC NATIONAL COMMITTEE, et al.,

Respondents.

____________________

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION,

CENTER FOR EQUAL OPPORTUNITY, AND

PROJECT 21 IN SUPPORT OF PETITIONERS

____________________

JOSHUA P. THOMPSON

CHRISTOPHER M. KIESER*

*Counsel of Record

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

JThompson@pacificlegal.org

CKieser@pacificlegal.org

Counsel for Amici Curiae

i

QUESTIONS PRESENTED

The questions presented are:

1. Does Arizona’s out-of-precinct policy violate

Section 2 of the Voting Rights Act?

2. Does Arizona’s ballot-collection law violate

Section 2 of the Voting Rights Act or the Fifteenth

Amendment?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

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

IDENTITY AND INTEREST

OF AMICI CURIAE .................................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 5

I.

Section 2 Protects Equality of

Opportunity—It Does Not Require

a Particular Racial Outcome ........................... 5

A. The “Results” Test Does Not Require

Disparate Impact Analysis............................ 7

B. Equal Opportunity Is the Touchstone

of Section 2 ................................................... 11

C. Disparate Impact Is Indistinguishable

from Section 5 Retrogression ...................... 14

II.

A Disparate Impact Interpretation

of Section 2 Presents Significant

Constitutional Concerns ................................ 18

A. The Ninth Circuit’s Interpretation

Presents the Conflict Between

Disparate Impact and Equal Protection ..... 18

B. Respondents’ Interpretation Would

Place Section 2 Beyond Congress’

Power To Enforce the Reconstruction

Amendments ................................................ 21

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

iii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

138 S. Ct. 2305 (2018) ....................................... 10

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ............................................. 4

Bartlett v. Strickland,

556 U.S. 1 (2009) ............................................. 1–2

Beer v. United States,

425 U.S. 130 (1976) ........................................... 15

Brooks v. Gant,

No. CIV-12-5003-KES, 2012 WL 4482984

(D.S.D. Sept. 27, 2012) ...................................... 14

Brown v. Detzner,

895 F. Supp. 2d 1236 (M.D. Fla. 2012) ............. 17

Bush v. Vera,

517 U.S. 952 (1996) ............................................. 1

Chisom v. Roemer,

501 U.S. 380 (1991) ............................................. 1

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................. 5, 21–22

City of Mobile v. Bolden,

446 U.S. 55 (1980) ......................................... 6, 10

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) ........................................... 20

City of Rome v. United States,

446 U.S. 156 (1980) ............................................. 1

Employment Division v. Smith,

494 U.S. 872 (1990) ........................................... 22

iv

Frank v. Walker,

768 F.3d 744 (7th Cir. 2014) ............. 4, 11, 13–14

Holder v. Hall,

512 U.S. 874 (1994) ......................................... 6–7

Houston Lawyers’ Ass’n v.

Attorney Gen. of Tex.,

501 U.S. 419 (1991) ....................................... 1, 13

Irby v. Va. State Bd. of Elections,

889 F.2d 1352 (4th Cir. 1989) ....................... 8, 12

Johnson v. De Grandy,

512 U.S. 997 (1994) ............................................. 6

Johnson v. Gov. of State of Fla.,

405 F.3d 1214 (11th Cir. 2005) ........................... 6

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ..................................... 2, 6–7

League of Women Voters of N.C. v.

North Carolina,

769 F.3d 224 (4th Cir. 2014) ................... 9, 15, 17

Milliken v. Bradley,

418 U.S. 717 (1974) ............................................. 9

Nw. Austin Mun. Util. Dist. No. 1 v. Holder,

557 U.S. 193 (2009) ............................................. 1

Ohio Democratic Party v. Husted,

834 F.3d 620 (6th Cir. 2016) ............................... 9

Ohio State Conf. of NAACP v. Husted,

768 F.3d 524 (6th Cir. 2014) ................... 9–10, 17

Ohio State Conf. of NAACP v. Husted,

No. 14-3877, 2014 WL 10384647

(6th Cir. Oct. 1, 2014) .......................................... 9

v

Ortiz v. City of Philadelphia,

28 F.3d 306 (3d Cir. 1994) ............................. 8, 12

Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) ......................................... 8–9

Personnel Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979) ........................................... 19

Reno v. Bossier Parish Sch. Bd.,

520 U.S. 471 (1997) ..................................... 16, 21

Ricci v. DeStefano,

557 U.S. 557 (2009) ................................... 2–3, 19

Salas v. Sw. Tex. Jr. Coll. Dist.,

964 F.2d 1542 (5th Cir. 1992) ........................... 12

Shaw v. Hunt,

517 U.S. 899 (1996) ............................................. 1

Shelby Cty. v. Holder,

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

Smith v. Salt River Project Agric.

Improvement & Power Dist.,

109 F.3d 586 (9th Cir. 1997) ............................... 8

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ..................................... 16, 22

Storer v. Brown,

415 U.S. 724 (1974) ..................................... 13–14

Texas Dep’t of Housing & Cmty. Affairs v.

Inclusive Communities Project, Inc.,

576 U.S. 519 (2015) ................................. 9, 19–20

The Abby Dodge v. United States,

223 U.S. 166 (1912) ........................................... 18

vi

Thornburg v. Gingles,

478 U.S. 30 (1986) ............................................... 6

Veasey v. Abbott,

830 F.3d 216 (5th Cir. 2016) ................... 9–10, 20

Wards Cove Packing Co. v. Atonio,

490 U.S. 642 (1989) ....................................... 9, 19

Washington v. Davis,

426 U.S. 229 (1976) ........................................... 21

White v. Regester,

412 U.S. 755 (1973) ......................................... 6–7

Wygant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986) ........................................... 20

Young v. Fordice,

520 U.S. 273 (1997) ........................................... 15

United States Constitution

U.S. Const. amend XIV, § 5 .................................... 21

amend XV, § 2 .................................................... 21

Statutes

42 U.S.C. § 1973 (1976) ............................................ 5

§ 2000e-2(k)(1)(A)(i) ........................................... 13

52 U.S.C. § 10301(a) ....................................... 3, 6, 11

§ 10301(b)................................................. 3, 11, 14

Rules

Sup. Ct. R. 37.3(a) ..................................................... 1

R. 37.6 .................................................................. 1

vii

Other Authorities

Adams, J. Christian, Transformation:

Turning Section 2 of the Voting Rights

Act Into Something It Is Not,

31 Touro L. Rev. 297 (2015) .............................. 16

Clegg, Roger & von Spakovsky, Hans A.,

“Disparate Impact” and Section 2 of the

Voting Rights Act,

85 Miss. L.J. 1357 (2017) .................................. 19

Primus, Richard A., Equal Protection and

Disparate Impact: Round Three,

117 Harv. L. Rev. 493 (2003) ........................ 4, 19

Tokaji, Daniel P., The New Vote Denial:

Where Election Reform Meets the Voting

Rights Act, 57 S.C. L. Rev. 689 (2006) ................ 7

1

IDENTITY AND INTEREST OF AMICI CURIAE

Pacific Legal Foundation (PLF), Center for Equal

Opportunity (CEO), and Project 21 respectfully

submit this brief amicus curiae in support of

Petitioners. 1

PLF is a nonprofit, tax-exempt corporation

organized under the laws of California for the purpose

of engaging in litigation in matters affecting the

public interest. In support of its Equality Under the

Law practice group, PLF advocates for a color-blind

interpretation of the United States Constitution and

opposes race-based decisionmaking by government.

PLF has participated as amicus curiae in this Court’s

major Voting Rights Act decisions. See, e.g., Shelby

Cty. v. Holder, 570 U.S. 529 (2013); Nw. Austin Mun.

Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009);

Bartlett v. Strickland, 556 U.S. 1 (2009); Bush v. Vera,

517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899

(1996); Chisom v. Roemer, 501 U.S. 380 (1991);

Houston Lawyers’ Ass’n v. Attorney Gen. of Tex., 501

U.S. 419 (1991); City of Rome v. United States, 446

U.S. 156 (1980).

1 Pursuant to this Court’s Rule 37.3(a), all parties have consented

to the filing of this brief. Pursuant to Rule 37.6, Amici Curiae

affirm that no counsel for any party authored this brief in whole

or in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amici Curiae, their members, or their counsel

made a monetary contribution to its preparation or submission.

2

CEO is a nonprofit research and educational

organization devoted to issues of race and ethnicity,

such as civil rights, bilingual education, immigration,

and assimilation. CEO supports color-blind public

policies and seeks to block the expansion of racial

preferences in areas such as employment, education,

and voting. CEO has participated as amicus curiae in

past significant voting rights cases. See, e.g., Shelby

Cty., 570 U.S. 529; Bartlett, 556 U.S. 1; League of

United Latin Am. Citizens (LULAC) v. Perry, 548 U.S.

399 (2006).

Project 21, the National Leadership Network of

Black Conservatives, is an initiative of the National

Center for Public Policy Research to promote the

views of African Americans whose entrepreneurial

spirit, dedication to family, and commitment to

individual responsibility have not traditionally been

echoed by the nation’s civil rights establishment.

Project 21 has participated as amicus curiae in past

significant voting rights cases. See, e.g., Shelby Cty.,

570 U.S. 529; Bartlett, 556 U.S. 1.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Eleven years ago, Justice Scalia predicted that

“the war between disparate impact and equal

protection will be waged sooner or later.” Ricci v.

DeStefano, 557 U.S. 557, 595–96 (2009) (Scalia, J.,

concurring). These cases represent the latest front of

that war. The questions presented require the Court

to choose between two fundamentally different

interpretations of the Voting Rights Act. One

proposed interpretation, endorsed by the Ninth

Circuit below and urged by Respondents here, would

prohibit enforcement of practically any state election

3

law merely on a showing of some statistical impact on

a particular racial group. As in other contexts, such

disparate impact liability “place[s] a racial thumb on

the scales” by requiring decisionmakers “to evaluate

the racial outcomes of their policies, and to make

decisions based on (because of) those racial outcomes.”

Id. at 594. These cases demonstrate the deep conflict

between disparate impact laws and the fundamental

constitutional guarantee of equality before the law—

the Equal Protection Clause is an individual right, but

disparate impact theory treats individuals simply as

members of a racial group. The court below effectively

transformed Section 2 from an individual right to

equal treatment under the law into a group right to a

particular outcome.

Fortunately, the text of the Voting Rights Act does

not require such a result. Section 2 of the Act prohibits

the enforcement of any “voting qualification or

prerequisite to voting or standard, practice, or

procedure . . . 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).

Subsection (b) explains that a violation occurs only

when the political processes “are not equally open to

participation by members of a class of citizens

protected” by the Act. Id. § 10301(b). This means that

individuals in protected groups must have

demonstrably “less opportunity than other members

of the electorate to participate in the political process

and to elect representatives of their choice.” Id.

Notably, nothing in the text authorizes an inquiry into

the effect of state election laws on the voting power of

various racial groups. Cf. JA 658 (“Arizona’s OOP

policy imposes a significant disparate burden on its

American Indian, Hispanic, and African American

4

citizens . . . .”). The text instead speaks of equality of

opportunity, prohibiting those election regulations

that deprive protected individuals equal access to the

polls. Put another way, Section 2 is an “equaltreatment requirement,” not an “equal-outcome

command.” Frank v. Walker, 768 F.3d 744, 754 (7th

Cir. 2014).

Even if these two readings were equally

persuasive, constitutional avoidance counsels in favor

of rejecting the disparate-impact-only interpretation.

Any statute that requires government decisionmakers

to draw racial classifications is inherently suspect and

must satisfy strict scrutiny. Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 227 (1995). “Disparate

impact doctrine’s operation requires people to be

classified into racial groups, and liability hinges on a

comparison of the statuses of those groups.”

Richard A. Primus, Equal Protection and Disparate

Impact: Round Three, 117 Harv. L. Rev. 493, 564

(2003). It follows that interpreting Section 2 to

prohibit the enforcement of all election provisions that

might lead to a disparate racial outcome would place

the statute in significant constitutional jeopardy.

There is no way to reconcile a constitutional provision

that protects individual rights with a statutory

provision that demands equal group-based outcomes.

Aside from the potential equal protection problem,

such a broad reading of the Act would potentially

render it ultra vires. Congress’ power to enforce the

Fourteenth and Fifteenth Amendments is remedial in

nature, and those Amendments prohibit only

intentional discrimination. Absent a Congressional

finding of pervasive race-based voting discrimination

nationwide, it is doubtful Congress could impose such

5

a broad provision on the States. See City of Boerne v.

Flores, 521 U.S. 507, 520 (1997).

The Voting Rights Act was enacted in response to

pervasive racial discrimination, particularly across

the South. See Shelby Cty. v. Holder, 570 U.S. 529,

536–37 (2013). Yet Section 2’s national prohibition on

racially discriminatory voting practices or procedures

is now often employed to enjoin race-neutral election

administration measures. These cases concern two

particular Arizona election regulations—its policy

prohibiting the counting of ballots cast in the wrong

precinct on Election Day and its law against thirdparty ballot delivery. Reasonable minds can and do

differ as to whether these policies are advisable or

necessary. But neither policy imposes a racially

discriminatory burden on voting. And neither policy

deprives any Arizona voter of the equal opportunity to

cast a legal ballot. The Voting Rights Act should

prohibit racial discrimination, not encourage racebased decisionmaking.

ARGUMENT

I.

Section 2 Protects Equality of

Opportunity—It Does Not Require a

Particular Racial Outcome

After nearly a century of failure to adequately

enforce the Fifteenth Amendment’s guarantee of

racial nondiscrimination in voting, Congress enacted

the Voting Rights Act in 1965. See id. The core of the

Act was a nationwide prohibition on the use of any

“qualification or prerequisite to voting, or standard,

practice, or procedure . . . to deny or abridge the right

of any citizen of the United States to vote on account

of race or color.” 42 U.S.C. § 1973 (1976). After this

6

Court held in City of Mobile v. Bolden, 446 U.S. 55

(1980), that the statute required proof of

discriminatory intent, Congress amended it to

prohibit any regulation 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). Citing a Senate Report,

the Court remarked that Congress in 1982

“substantially revised § 2 to make clear that a

violation could be proved by showing discriminatory

effect alone and to establish as the relevant legal

standard the ‘results test,’ applied by this Court in

White v. Regester, 412 U.S. 755 (1973), and by other

federal courts before Bolden.” Thornburg v. Gingles,

478 U.S. 30, 35 (1986). But until now, the Court has

never had the occasion to interpret the new statute in

this context.

The Court’s prior Section 2 cases have thus far

been of the “vote dilution” variety—that is, challenges

to the drawing of electoral districts or other

mechanisms, like multimember districts, that affect

the weight of an individual’s vote. See Gingles, 478

U.S. 30; Johnson v. De Grandy, 512 U.S. 997 (1994);

Holder v. Hall, 512 U.S. 874 (1994); League of United

Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399

(2006). These cases, on the other hand, are what

courts have dubbed “vote denial” cases. See Johnson

v. Gov. of State of Fla., 405 F.3d 1214, 1227 n.26 (11th

Cir. 2005) (en banc). In fact, the very existence of that

term explains why the Court must decide these cases;

“vote denial” assumes that a statistical disparity in

the usage of a particular device by race means that

taking such a device away results in the “denial” of

votes. As the foregoing analysis will demonstrate, this

is mistaken.

7

A. The “Results” Test Does Not Require

Disparate Impact Analysis

Interpreting the 1982 amendment, courts have

understandably focused on the “results” language

Congress added to Section 2. But the so-called “results

test” derived from vote dilution cases—including this

Court’s decision in White, which the Senate Report

cited as an example of how the amendment should be

applied. It is particularly tailored to those

circumstances. In White, for example, this Court

upheld an order directing two Texas counties to

replace multimember legislative districts with singlemember ones, because the effect of the multimember

districts was to exclude Black (in one county) and

Mexican-American (in the other county) voters from

political power. 412 U.S. at 765–69. Whether or not

the Court’s vote dilution cases are correct, see Holder,

512 U.S. at 944 (Thomas, J., concurring in the

judgment); LULAC, 548 U.S. at 512 (Scalia, J.,

concurring in the judgment in part and dissenting in

part), they are different in kind from the species of

cases presented here. The Senate Report cited in

Gingles did not contemplate the type of claim brought

in these and other recent Section 2 cases. Daniel P.

Tokaji, The New Vote Denial: Where Election Reform

Meets the Voting Rights Act, 57 S.C. L. Rev. 689, 709

(2006) (“The legislative history of the 1982

amendments, however, provides little guidance on

how Section 2 should apply to practices resulting in

the disproportionate denial of minority votes.”).

The primary reason these cases are so different

from White and Gingles is the lack of causation

present here. In a challenge to district lines or

structure, there is no doubt that the officials who drew

8

the lines or authorized the structure caused the racial

result. After all, voters can only vote in the districts

they are placed in—the racial composition of those

districts is up to those who draw the maps. But where

the challenge is based on the racial effect of some

election regulation that applies to all voters, that is

far from clear. Early cases brought under this theory

generally failed for precisely that reason. For

example, the Third Circuit rejected a Section 2

challenge to the enforcement of a statute requiring the

purging of nonvoters from the voter rolls because

“registered voters are purged—without regard to race,

color, creed, gender, sexual orientation, political

belief, or socioeconomic status—because they do not

vote, and do not take the opportunity of voting in the

next election or requesting reinstatement.” Ortiz v.

City of Philadelphia, 28 F.3d 306, 314 (3d Cir. 1994).

The Ninth Circuit agreed, as it flatly rejected a

challenge to a property ownership requirement for

voting in a utility district while noting that “a bare

statistical showing of disproportionate impact on a

racial minority does not satisfy the § 2 ‘results’

inquiry.” Smith v. Salt River Project Agric.

Improvement & Power Dist., 109 F.3d 586, 595-96 (9th

Cir. 1997); see also Irby v. Va. State Bd. of Elections,

889 F.2d 1352, 1358 (4th Cir. 1989) (rejecting a

Section 2 challenge to Virginia’s choice to pick school

board members through appointment, rather than

election, because there was no evidence the appointive

system caused the observed racial disparity).

These cases are consistent with the principle that

a government entity is not responsible for racial

disparities that it did not cause. See Parents Involved

in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,

721 (2007) (school districts may only seek to remedy

9

racial disparities “traceable to segregation”); Milliken

v. Bradley, 418 U.S. 717, 745 (1974) (rejecting

interdistrict remedy when the plaintiffs failed to show

that any government actions “have been a substantial

cause of interdistrict segregation”). Were it otherwise,

the use of race to avoid disparate impact liability

would be “pervasive,” and “‘would almost inexorably

lead’ governmental . . . entities to use ‘numerical

quotas.’” Texas Dep’t of Housing & Cmty. Affairs v.

Inclusive Communities Project, Inc., 576 U.S. 519, 542

(2015) (quoting Wards Cove Packing Co. v. Atonio, 490

U.S. 642, 653 (1989)).

The theory adopted below stretched the “results”

test beyond any recognizable limits, sweeping in racial

disparities not caused by the challenged regulation.

The Fourth, Fifth, and Sixth Circuits have all held

that Section 2 required plaintiffs to demonstrate only

that the statistically disparate effect of a particular

voting regulation is “caused by or linked to ‘social and

historical conditions’ that have or currently produce

discrimination against members of the protected

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

524, 554 (6th Cir. 2014); see also League of Women

Voters of N.C. v. North Carolina, 769 F.3d 224 (4th

Cir. 2014) (adopting same test); Veasey v. Abbott, 830

F.3d 216, 264–65 (5th Cir. 2016) (en banc) (same). 2

The Ninth Circuit below followed its sister circuits in

2 The Sixth Circuit later vacated its opinion as moot following an

order of this Court. See Ohio State Conf. of NAACP v. Husted,

No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014). A

different panel repudiated much of the initial panel’s reasoning

two years later, but not before the Fourth Circuit had already

adopted the initial panel’s analysis. See Ohio Democratic Party

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

10

sweeping

away

requirement.

any

meaningful

causation

This works by substituting present socioeconomic

disparities—and their link to past official

discrimination—for

the

traditional

causation

analysis. See Husted, 768 F.3d at 556 (“African

Americans in Ohio tend to be of lower-socioeconomic

status because of ‘stark and persistent racial

inequalities . . . [in] work, housing, education and

health,’ inequalities that stem from ‘both historical

and contemporary discriminatory practices.’” (quoting

expert testimony)); Veasey, 830 F.3d at 259 (“[T]he

history of State-sponsored discrimination led to . . .

disparities in education, employment, housing, and

transportation.”). Because these racial disparities

exist in almost every state, and public and private

discrimination was once widespread, the same

analysis would invalidate election laws nationwide

without regard to contemporary state action. Indeed,

that is what has happened in states as different as

North Carolina, Texas, Arizona, and Ohio. But that

cannot be the law; “[p]ast discrimination cannot, in

the manner of original sin, condemn governmental

action that is not in itself unlawful.” Abbott v. Perez,

138 S. Ct. 2305, 2324 (2018) (quoting Bolden, 446 U.S.

at 74 (plurality opinion)). At some point, it becomes

absurd to suggest that state action decades ago has

caused a disparate effect upon the implementation of

a voting regulation today. After all, “history did not

end in 1965.” Shelby County, 570 U.S. at 552.

Section 2 demands more than a simple statistical

showing coupled with general socioeconomic

disparities. While the “results” language of the 1982

amendment abrogated Bolden’s interpretation of the

11

original statute that required plaintiffs to prove

discriminatory intent, it did not absolve plaintiffs of

the obligation to prove that state law caused the

alleged disparity. In short, the “results” test is not

simply a prohibition of all state election regulations

that might disproportionately affect a racial group.

B. Equal Opportunity Is the Touchstone

of Section 2

What, then, does it mean for an election law to

“result[] 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). Subsection (b) of

Section 2 provides the answer: a plaintiff must show

that the political processes in the jurisdiction “are not

equally open to participation by members of a class of

citizens protected” by the Act, such that the protected

group has “less opportunity than other members of the

electorate to participate in the political process and to

elect representatives of their choice.” Id. § 10301(b)

(emphases added). The inquiry into equality of

opportunity must consider “the totality of

circumstances,” id.—that is, the entirety of a State’s

voting apparatus—and then determine whether the

existence of the challenged provisions effectively

deprives members of a protected group the equal

opportunity to participate in elections. See Frank, 768

F.3d at 753 (“To the extent outcomes help to decide

whether the state has provided an equal opportunity,

we must look not at Act 23 in isolation but to the entire

voting and registration system.”).

Equality of opportunity goes hand-in-hand with

causation. If a statistical impact is observed, but a

State’s election laws provide equal opportunity for

everyone to participate in the process, it follows that

12

the State’s election laws have not caused the disparate

impact. The cause of the disparity in such a case is

simply the “failure to take advantage of political

opportunity.” Salas v. Sw. Tex. Jr. Coll. Dist., 964 F.2d

1542, 1556 (5th Cir. 1992). The same was true in

Ortiz, where voters could have avoided being purged

from the rolls simply by voting or requesting

reinstatement, see 28 F.3d at 314, and Irby, where the

lack of Black school board members was the result of

lack of interest, not any state-imposed barriers, 889

F.2d at 1358. If it were otherwise, simple failure to

turn out and vote would transform the

implementation of an otherwise legal provision into a

Section 2 violation. Of course, “a protected class is not

entitled to § 2 relief merely because it turns out in a

lower percentage” than other voters. Salas, 964 F.2d

at 1556.

Rather than mere disparate impact, the statute

demands the Court focus on the overall climate for

voting to determine whether the State has deprived

any particular group of the equal opportunity to

participate. With respect to Arizona’s policy against

votes cast in the wrong precinct, it turns out that this

is a simple task. The precinct system is used only

during in person voting on Election Day, but Arizona

does not require voters to vote in person on Election

Day. Indeed, most Arizona voters do not do so. JA 119

(O’Scannlain, J., dissenting below). That is because

“Arizona law permits all registered voters to vote

early by mail or in person at an early voting location

in the 27 days before an election.” Id. And Arizona has

online voter registration, along with an option to

request automatic delivery of a mail-in ballot. Id.

What is more, less than one percent of all ballots in

recent elections have been cast in the wrong precinct

13

on Election Day. Id. at 43 (majority opinion below). On

these facts, it is hard to see how Arizona’s policy

against counting votes cast in the wrong precinct on

Election Day has deprived anyone of the opportunity

to cast a vote. See Frank, 768 F.3d at 753 (“Although

these findings document a disparate outcome, they do

not show a ‘denial’ of anything by Wisconsin, as § 2(a)

requires . . . .”). That some voters choose to vote on

Election Day and arrive at the wrong precinct does not

render Arizona’s policy illegal—even if those voters

are disproportionately members of a particular racial

group.

This still leaves ample room for courts to find a

violation of Section 2 without proof of discriminatory

intent. Were a State to make it “needlessly hard” to

register or vote, it could still run afoul of Section 2 by

denying equal opportunity to those who could not

complete the process or comply with the

requirements. See id. 3 And a State that maintains

3 It is here where courts might consider, as a part of the totality

of the circumstances analysis, the strength of the asserted state

interest in maintaining the challenged practice. See Houston

Lawyers’ Ass’n v. Att’y Gen. of Tex., 501 U.S. 419, 426–27 (1991)

(noting in vote dilution context that “[a] State’s justification for

its electoral system is a proper factor for the courts to assess”).

After all, even statutes that authorize disparate impact liability

often provide that legitimate, nondiscriminatory reasons for

enforcing the challenged practice may defeat liability. See, e.g.,

42 U.S.C. § 2000e-2(k)(1)(A)(i) (an unlawful employment practice

under Title VII of the Civil Rights Act is established only if the

plaintiff demonstrates disparate impact and the defendant “fails

to demonstrate that the challenged practice is job related for the

position in question and consistent with business necessity”).

Section 2 analysis cannot be divorced from the significant

interest states have in regulating elections. See Storer v. Brown,

415 U.S. 724, 730 (1974) (“[A]s a practical matter, there must be

a substantial regulation of elections if they are to be fair and

14

different rules in various counties, so as to make it

harder for residents of one county to vote than those

of another, also runs the risk of violating Section 2.

See Brooks v. Gant, No. CIV-12-5003-KES, 2012 WL

4482984, at *1, *6-7 (D.S.D. Sept. 27, 2012) (finding a

Section 2 “results” violation where a substantially

Native American county offered far fewer early voting

days than majority-white counties). These examples

involve state action denying the equal opportunity to

participate in the political process, which is precisely

what Section 2 prohibits. As Judge Easterbrook

observed, Section 2 is an “equal-treatment

requirement,” not an “equal-outcome command.”

Frank, 768 F.3d at 754.

In short, while the 1982 amendment did

substantially broaden the scope of Section 2 liability,

it did not go as far as Respondents or the Ninth Circuit

would have it. Just as the Voting Rights Act provides

no right to proportional representation by race, see 52

U.S.C. § 10301(b), it does not require that States

consider the racial effect of every regulation of

elections. Instead, the statute simply requires each

jurisdiction to provide every voter, regardless of race,

the same opportunity to participate in the political

process.

C. Disparate Impact Is Indistinguishable

from Section 5 Retrogression

There is still another reason why Respondents and

the court below must be wrong about the

interpretation of Section 2. Under the standard

applied below, there effectively exists a one-way

honest and if some sort of order, rather than chaos, is to

accompany the democratic processes.”).

15

ratchet for voting regulations. Inevitably, disparate

impact analysis involves a comparison between the

previous standard and the current one—the old law

provides the reference point by which the effect of the

new law is measured. So a state which has had a law

requiring voters to show photo identification could

eliminate that requirement without Section 2

scrutiny, and a jurisdiction which had three weeks of

in-person early voting may increase to four weeks

without trouble. But were those jurisdictions to

attempt to shift back to their previous laws, or enact

new regulations, they might run into a Section 2

problem. See League of Women Voters of N.C., 769

F.3d at 232–33, 248–49 (directing the district court to

issue a preliminary injunction requiring North

Carolina to maintain same-day registration and count

out-of-precinct votes—both policies the State

attempted to repeal after less than a decade on the

books). The one-way ratchet demonstrates that the

broad disparate impact interpretation of Section 2 is

contrary to the statutory text—and indeed, more

consistent with an inquiry under Section 5 of the

Voting Rights Act.

Unlike Section 2, Section 5 does not apply

nationally—it is instead targeted at certain covered

jurisdictions determined to have a “specified history of

voting discrimination.” Young v. Fordice, 520 U.S.

273, 276 (1997). It requires these jurisdictions to

obtain the “preclearance” of the Attorney General or a

three-judge district court in Washington, D.C., before

enforcing any law that “would lead to a retrogression

in the position of racial minorities with respect to their

effective exercise of the electoral franchise.” Beer v.

United States, 425 U.S. 130, 141 (1976). While the

Court at the time acknowledged that Section 5’s

16

preclearance requirement, which deviated from the

typical understanding of federalism and equal

sovereignty of the States, Shelby County, was an

“uncommon exercise of congressional power,” South

Carolina v. Katzenbach, 383 U.S. 301, 334 (1966), it

nevertheless upheld its constitutionality. But in

Shelby County, the Court invalidated Section 4(b)’s

formula for determining covered jurisdictions, finding

it not tailored to the present realities in the covered

states. 570 U.S. at 556 (“If Congress had started from

scratch in 2006, it plainly could not have enacted the

present coverage formula. It would have been

irrational for Congress to distinguish between States

in such a fundamental way based on 40-year-old data,

when today’s statistics tell an entirely different

story.”). Because Congress has yet to enact a new

formula, Section 5’s strong medicine is not currently

enforceable.

The non-retrogression standard of Section 5 is a

bare disparate impact provision which “necessarily

implies that the jurisdiction’s existing plan is the

benchmark against which the ‘effect’ of voting changes

is measured.” Reno v. Bossier Parish Sch. Bd., 520

U.S. 471, 478 (1997). The non-retrogression standard

was never meant to apply nationwide; after all,

Section 2 and Section 5 “combat different evils.” Id. at

477. Nevertheless, cases like the one below have

effectively “concoct[ed] a version of Section 2 that

mirrors the retrogression standard in Section 5 and

mobilizes Section 2 to undertake what Shelby County

ended, except nationwide.” J. Christian Adams,

Transformation: Turning Section 2 of the Voting

Rights Act Into Something It Is Not, 31 Touro L. Rev.

297, 325 (2015).

17

It is hard to understand the results of many recent

Section 2 cases except as applications of the nonretrogression principle. In the case below, for

example, the Ninth Circuit found disparate impact

simply by observing that the ballots cast in the

improper precinct were disproportionately cast by

racial minorities. JA 617–22. The Fourth and Sixth

Circuits measured the effect of a limited rollback of

early-voting days by noting that black voters

disproportionately use early voting. See Husted, 768

F.3d at 533 (“African Americans will be

disproportionately and negatively affected by the

reductions in early voting in SB 238 and Directive

2014–17.”); League of Women Voters, 769 F.3d at 245

(finding disparate impact based on black voters’

disproportionate use of early voting). The comparison

of racial effects of the old and new laws is a

quintessential Section 5 non-retrogression inquiry.

See Brown v. Detzner, 895 F. Supp. 2d 1236, 1251

(M.D. Fla. 2012) (denying a preliminary injunction

against Florida’s reduction of early-voting days and

noting that the court was “not conducting a

‘retrogression’ analysis,” but instead determining

“whether, under the totality of the circumstances,

application of the 2011 Early Voting Statute serves to

deny African American voters equal access to the

political process”). It has no place in Section 2’s equal

opportunity analysis.

If adopted, the transformation of Section 2 would

all but render Shelby County a dead letter by

extending Section 5’s non-retrogression analysis

nationwide. The Court should reject Respondents’

attempt to graft Section 5’s standard onto the text of

Section 2.

18

II.

A Disparate Impact Interpretation of

Section 2 Presents Significant

Constitutional Concerns

Even if the statutory interpretation question were

close, there is an independent reason to reject the

interpretation of Section 2 proposed by Respondents

and the Ninth Circuit—it would threaten to render

the statute unconstitutional. It is an “elementary rule

of construction that where two interpretations of a

statute are in reason admissible, one of which creates

a repugnancy to the Constitution and the other avoids

such repugnancy, the one which makes the statute

harmonize with the Constitution must be adopted.”

The Abby Dodge v. United States, 223 U.S. 166, 175

(1912). Here, Respondents’ proposed interpretation

would call into doubt both Section 2’s consistency with

the Equal Protection Clause and whether Congress

had the power to enact such a broad statute under its

power to enforce the Fourteenth and Fifteenth

Amendments. The Court can avoid this problem by

adhering to the statutory text.

A. The Ninth Circuit’s Interpretation

Presents the Conflict Between

Disparate Impact and Equal

Protection

The recent spate of Section 2 decisions invalidating

state voting regulations on a disparate impact theory

come at a time when courts and commentators are

beginning to grapple with the conflict between laws

that premise liability solely on impact to a racial

group and the individual’s right to equal protection of

the laws. Equal protection should ensure that

government decisionmaking is free from the taint of

racial considerations, but disparate impact liability

19

does not allow racial impartiality. Indeed, “[d]isparate

impact doctrine’s operation requires people to be

classified into racial groups, and liability hinges on a

comparison of the statuses of those groups.” Primus,

supra, 117 Harv. L. Rev. at 564. It necessarily places

a “racial thumb on the scales, often requiring”

governments “to evaluate the racial outcomes of their

policies, and to make decisions based on (because of)

those racial outcomes.” Ricci, 557 U.S. at 594 (Scalia,

J., concurring); see also Wards Cove, 490 U.S. at 652–

53 (1989) (noting that employers would be compelled

to establish racial quotas in response to a disparate

impact provision). That sort of decisionmaking is

usually recognized as discriminatory. See Personnel

Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979).

Failing to correct an interpretation of Section 2 that

effectively requires race-based decisionmaking would

place Section 2 itself on shaky constitutional ground.

See Roger Clegg & Hans A. von Spakovsky, “Disparate

Impact” and Section 2 of the Voting Rights Act, 85

Miss. L.J. 1357, 1363–66 (2017).

That is especially true because Respondents’

interpretation—echoed by the Fourth, Fifth, Sixth,

and Ninth Circuits—eschews any traditional

causation requirement. See supra I.A. Not long ago,

this Court was asked whether the Fair Housing Act

countenances disparate impact liability. It answered

in the affirmative, but with an important caveat. A

“robust causality requirement” was necessary even at

the prima facie stage to “protect[] defendants from

being held liable for racial disparities they did not

create.” Tex. Dep’t of Housing, 576 U.S. at 542.

Without such a requirement, the Court said,

governments might have to resort to “numerical

quotas,” which would raise “serious constitutional

20

questions.” Id.; see also id. at 540 (“[D]isparate-impact

liability has always been properly limited in key

respects that avoid the serious constitutional

questions that might arise under the FHA, for

instance, if such liability were imposed based solely on

a showing of a statistical disparity.”). But that is

precisely what we have here—potential liability

untethered to any recent state action, linked to the

state based only on the combination of socioeconomic

conditions and past discrimination, which in many

cases occurred decades ago. Such a hand-waving

causation requirement is not “robust” by any stretch,

and if adopted would leave Section 2 vulnerable to

constitutional attack.

The concern about race-based decisionmaking is

not hypothetical. Already, the debates in state

legislatures surrounding election regulations are

sordidly consumed with race. To take one example

from Texas, the Fifth Circuit was forced to clarify that

a finding of discriminatory intent in a voting rights

case could not be based on speculation by the bill’s

opponents that the supporters had a racially

discriminatory motive. Veasey, 830 F.3d at 233–34.

Reading Section 2 as imposing liability for every

statistically disparate effect will only exacerbate this

trend, making race the primary consideration in many

legislative debates and “effectively assur[ing]” that

“the ‘ultimate goal’ of ‘eliminat[ing] entirely from

governmental decisionmaking such irrelevant factors

as a human being’s race,’ will never be achieved.” City

of Richmond v. J.A. Croson Co., 488 U.S. 469, 495

(1989) (plurality opinion) (quoting Wygant v. Jackson

Bd. of Educ., 476 U.S. 267, 320 (1986) (Stevens, J.,

dissenting)). This Court should avoid a reading of

21

Section 2 that would bring it into conflict with the text

and ultimate goal of the Equal Protection Clause.

B. Respondents’ Interpretation Would

Place Section 2 Beyond Congress’

Power To Enforce the Reconstruction

Amendments

The Voting Rights Act was an exercise of Congress’

enforcement power granted under the Fourteenth and

Fifteenth Amendments. Both enforcement provisions

grant Congress the “power to enforce, by appropriate

legislation, the provisions of this article.” U.S. Const.

amend. XIV, § 5; U.S. Const. amend. XV, § 2. But such

legislation must be remedial in nature. City of Boerne,

521 U.S. at 519, 532. And “[w]hile preventive rules are

sometimes appropriate remedial measures, there

must be a congruence between the means used and

the ends to be achieved.” Id. at 530. The Fourteenth

and Fifteenth Amendments prohibit only intentional

discrimination, see Washington v. Davis, 426 U.S. 229,

239 (1976) (Fourteenth Amendment), Bossier Parish,

520 U.S. at 481 (Fifteenth Amendment), so if the

Voting Rights Act authorized liability based on

statistical disparities, it would certainly qualify as a

preventive rule which “must be considered in light of

the evil presented.” City of Boerne, 521 U.S. at 530.

The last time this Court considered such a

question, it held that Congress lacked the authority to

impose the Religious Freedom Restoration Act

(RFRA) on the States. That is because RFRA, in

purporting to require that even generally applicable

laws that substantially burden religious exercise must

pass strict scrutiny, provided greater protection than

the First Amendment. That is why the Court looked

for real-world evidence of intentional religious

22

discrimination in the States in order to justify RFRA

as a preventive measure. It found none. See City of

Boerne, 521 U.S. at 530 (“The history of persecution in

this country detailed in the [RFRA] hearings mentions

no episodes occurring in the past 40 years.”). Without

any “reason to believe that many of the laws affected

by” RFRA would be unconstitutional under

Employment Division v. Smith, 494 U.S. 872 (1990),

the Court held RFRA was “a substantive change in

constitutional protections,” rather than a remedial

statute. Id. at 532. After all, “[l]egislation which alters

the meaning of [a constitutional clause] cannot be said

to be enforcing [that] Clause. Congress does not

enforce a constitutional right by changing what the

right is.” Id. at 519.

City of Boerne contrasted its holding with cases

upholding the Voting Rights Act’s constitutionality as

a remedial measure. See id. at 530 (“In contrast to the

record which confronted Congress and the Judiciary

in the voting rights cases, RFRA’s legislative record

lacks examples of modern instances of generally

applicable laws passed because of religious bigotry.”);

see also id. at 518 (collecting cases upholding the

VRA). But in the early days of the VRA, the evidence

of widespread discrimination was staggering,

justifying even an extraordinary remedy like Section

5’s preclearance provision. See Shelby County, 570

U.S. at 555; Katzenbach, 383 U.S. at 334–35. At that

point, Congress did have the authority to “prohibit

laws with discriminatory effects in order to prevent

racial discrimination in violation of the Equal

Protection Clause.” City of Boerne, 521 U.S. at 529. A

similar record of religious discrimination likely would

have given Congress the authority to enact RFRA, too.

But none existed.

23

Now, however, things have changed. As the Court

recognized seven years ago, the conditions that

prompted the Voting Rights Act’s passage are largely

gone. See Shelby County, 570 U.S. at 535. As a result,

were Section 2 of the Act interpreted to prohibit all

voting regulations that might disproportionately

affect minority voters, acting as a one-way ratchet

prohibiting states even from repealing relatively new

election laws, it would no longer be a remedial statute.

This version of Section 2 would instead be a

substantive expansion of the rights guaranteed by the

Fourteenth and Fifteenth Amendments, and therefore

not remedial. And unfortunately, such an expansive

reading of these guarantees against racial

discrimination would not even protect anyone from

racial discrimination; it would instead encourage

more race-based decisionmaking.

Given the current evidence considered by the

Shelby County Court, Section 2, read as Respondents

and the Ninth Circuit would have it, would be

unconstitutional. For obvious reasons, this Court

should reject any interpretation of the Voting Rights

Act that would render it unconstitutional. Therefore,

constitutional avoidance counsels strongly against

adopting the Ninth Circuit’s interpretation and in

favor of reversal or remand.

24

CONCLUSION

This Court should either reverse the judgment

below or vacate it and remand the cases to the Ninth

Circuit for application of the proper Section 2

standard.

DATED: December 2020.

Respectfully submitted,

JOSHUA P. THOMPSON

CHRISTOPHER M. KIESER*

*Counsel of Record

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

JThompson@pacificlegal.org

CKieser@pacificlegal.org

Counsel for Amici Curiae