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

No. 19-1257, 19-1258

In The

Supreme Court of the United States

MARK BRNOVICH, IN HIS OFFICIAL CAPACITY AS

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 Writ of Certiorari to the

U.S. Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE THE REPUBLICAN

GOVERNORS PUBLIC POLICY COMMITTEE

IN SUPPORT OF PETITIONERS

Jason Torchinsky

Jessica Furst Johnson

Counsel of Record

General Counsel

Dennis W. Polio

Republican Governors

Holtzman Vogel

Public Policy Committee

Josefiak Torchinsky PLLC 1747 Pennsylvania Ave. NW

15405 John Marshall Hwy. Suite 250

Haymarket, VA 20169

Washington, D.C. 20006

(540) 341-8808

(202) 662-4140

(540) 341-8809

jjohnson@RGA.org

Jtorchinsky@hvjt.law

Counsel for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF THE

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

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

I.

THE SCOPE OF ANY VRA

ANALYSIS NECESSARILY MUST

BE TEMPORALLY LIMITED. .................... 5

II.

THE TOTALITY OF

CIRCUMSTANCES IN ARIZONA

DEMONSTRATES A CONTINUED

COMMITMENT TO EXPANDING

ACCESS TO VOTING RATHER

THAN DISCRIMINATION. ......................... 8

A.

The En Banc Majority Based

Its Section 2 Analysis On The

Actions Of Bygone Eras....................... 8

B.

Arizona’s Modern History

Demonstrates A Continued

Effort To Expand Voting Access

While Ensuring Election

Integrity. ............................................ 11

C.

Arizona’s Actions To Increase

Access To The Franchise Of

Voting Have Worked. ........................ 16

ii

III. ARIZONA’S PRECINCT-BASED

VOTING SYSTEM AND

PROHIBITION ON UNLIMITED

THIRD-PARTY BALLOT

HARVESTING ARE STRONGLY

JUSTIFIED. ............................................... 19

A.

Arizona’s Interests In Its OutOf-Precinct Policy. ............................. 20

B.

Arizona’s Interests In Its

Limits On Ballot Harvesting............. 23

IV. LEGISLATION SHOULD NOT BE

INVALIDATED BECAUSE OF

COURTS’ SUBJECTIVE

INTERPRETATIONS OF THE

ACTIONS OF A SINGLE

LEGISLATOR. ........................................... 25

V.

IF ARIZONA’S NEUTRAL AND

REASONABLE ELECTION

REGULATIONS ARE

“DISCRIMINATORY,” NEARLY

ALL STATE ELECTION LAWS ARE

IN DANGER. .............................................. 28

CONCLUSION .......................................................... 30

iii

TABLE OF AUTHORITIES

CASES

Abbott v. Perez, 138 S. Ct. 2305 (2018) .............. 26, 27

Crawford v. Marion Cty. Election Bd., 553

U.S. 181 (2008) ........................................... 20, 23

Crossey v. Boockvar, 2020 Pa. LEXIS 4868

(Pa. 2020) .......................................................... 24

DCCC v. Ziriax, 2020 U.S. Dist. LEXIS

170427 (N.D. Okla. 2020) ................................. 24

DiPietrae v. City of Phila., 666 A.2d 1132 (Pa.

Commw. Ct. 1995) ............................................ 23

Edwards v. Aguillard, 482 U.S. 578 (Scalia,

J., dissenting).............................................. 25, 26

Eu v. S.F. Cty. Democratic Cent. Comm., 489

U.S. 214 (1989) ................................................. 20

Lopez v. Monterey Cty., 525 U.S. 266 (1999) ........ 6, 25

Mance v. Sessions, 896 F.3d 699 (5th Cir.

2018) .................................................................... 7

Mayhew v. Burwell, 772 F.3d 80 (1st Cir.

2014), cert. denied, 576 U.S. 1004 (2015) .......... 7

Miller v. Picacho Elementary Sch. Dist. No.

33, 877 P.2d 277 (Ariz. 1994) ........................... 21

iv

Miracle v. Hobbs, No. 19-17513, 808 Fed.

Appx. 470 (9th Cir. May 1, 2020) ..................... 20

N.C. State Conference of the NAACP v.

Raymond, No. 20-1092, 2020 U.S. App.

LEXIS 10972 (4th Cir. Apr. 7, 2020) ............... 27

Nader v. Brewer, 531 F.3d 1028 (9th Cir.

2008) .................................................................. 20

Northwest Austin Municipal Utility District

Number One v. Holder, 557 U.S. 193

(2009) ........................................................ passim

Pabey v. Pastrick, 816 N.E.2d 1138 (Ind. 2004) ....... 23

Perez v. Abbott, 274 F. Supp. 3d 624 (W.D.

Tex. 2017).......................................................... 27

Qualkinbush v. Skubisz, 826 N.E.2d 1181 (Ill.

App. Ct. 2004) ................................................... 23

Ray v. Texas, No. 2-06-CV-385 (TJW), 2008

U.S. Dist. LEXIS 59852 (E.D. Tex. Aug.

7, 2008) .............................................................. 23

Sandusky Cty. Democratic Party v. Blackwell,

387 F.3d 565 (6th Cir. 2004) ...................... 20, 21

Shelby Cty. v. Holder, 570 U.S. 529 (2013) ...... passim

Smith v. School Bd. of Concordia Par., 906

F.3d 327 (5th Cir. 2018) ..................................... 6

Thornburg v. Gingles, 478 U.S. 30 (1986) .................. 4

v

Timmons v. Twin Cities Area New Party, 520

U.S. 351 (1997) ................................................. 20

United States v. Cannon, 750 F.3d 492 (5th

Cir. 2014), cert. denied, 574 U.S. 1029

(2014) .................................................................. 6

United States v. O’Brien, 391 U.S. 367 (1968) ......... 26

Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016),

cert. denied, 137 S. Ct. 612 (2017) ................. 6, 8

STATUTES

U.S. Const., Art., § 8 ................................................... 7

52 U.S.C. 10301(b) .................................................. 3, 4

Ariz. Rev. Stat. § 16-111 ........................................... 13

Ariz. Rev. Stat § 16-112 ............................................ 13

Ariz. Rev. Stat. § 16-541 ........................................... 15

Ariz. Rev. Stat. § 16-542 ............................... 14, 15, 16

Ariz. Rev. Stat. § 16-544 ..................................... 14, 15

Ariz. Rev. Stat. § 16-547 ........................................... 14

Ariz. Rev. Stat. § 16-548 ........................................... 14

Ariz. Rev. Stat. § 16-584 ........................................... 14

1984 Ariz. Sess. Laws 984-85 ................................... 15

vi

LEGISLATIVE AUTHORITIES

H.R. 2040, 36th Leg., 2d Reg. Sess., 1984 Ariz.

Sess. Laws 984 (Ariz. 1984) ....................... 14, 15

H.R. 2106, 48th Leg., 1st Reg. Sess., 2007

Ariz. Sess. Laws 641 (Ariz. 2007) .............. 15, 16

S. 1003, 43rd Leg., 2d Spec. Sess., 1997 Ariz.

Sess. Laws 3063, 3071-3072 (Ariz. 1997) ........ 15

S. Rep. No. 97-417, 97th Cong., 2d Sess. 28-29

(1982) .................................................................. 4

OTHER AUTHORITIES

2000 Census of Population Arizona 2 tbl.1

(2002) .................................................... 12, 17, 18

1980 Census of Population U.S. Summary 1124 tbl.61 (1983) ......................................... 12, 17

1990 CP-1-4, 1990 Census of Population

Arizona 1 tbl.1 (1992) ................................. 12, 17

Ariz. Legislature, Bill History for HR2003 .............. 25

Ariz. Sec’y of State, 1980 General Election

Canvass ............................................................. 17

Ariz. Sec’y of State, 1992 General Election

Canvass ............................................................. 17

Ariz. Sec’y of State, 1980 Voter Registration ........... 17

vii

Ariz. Sec’y of State, 1990 Voter Registration ........... 17

Ariz. Sec’y of State, Historical Election

Results & Information (last accessed

December 5, 2020) ............................................ 13

Ariz. Sec’y of State, State of Arizona Official

Canvass: 2000 General Election ....................... 18

Ariz. Sec’y of State, State of Arizona Official

Canvass: 2020 General Election ....................... 18

Ariz. Sec’y of State, State of Arizona

Registration Report: 2000 General

Election ............................................................. 17

Argument “For” Proposition 202, Arizona

Initiative and Referendum Publicity

Pamphlet General Election 1982 ..................... 13

Jaume Magre et al., Moving to Suburbia?

Effects of Residential Mobility on

Community Engagement, 53 Urb. Stud.

17 (2016)............................................................ 16

Matt A. Barreto et al., Online Voter

Registration (OLVR) Systems in Arizona

and Washington 82 (2010) ......................... 13, 14

QuickFacts: Arizona, U.S. Census Bureau

(last accessed May 30, 2020) ............................ 18

Squire, P., Wolfinger, R., & Glass, D. (1987).

Residential Mobility and Voter

Turnout. American Political Science

viii

Review, 81(1), 45-65.

doi:10.2307/1960778 ......................................... 16

Troy Closson, New Local Election Ordered in

N.J. After Mail-In Voter Fraud Charges,

N.Y. Times (Aug. 19, 2020) .............................. 24

U.S. Census Bureau, QuickFacts: Arizona

(last accessed December 5, 2020) ..................... 12

U.S. Dep’t of Commerce, Bureau of the

Census, PC80-1-B1, 1980 Census of

Population U.S. Summary 1-124 tbl.61

(1983) .......................................................... 12, 17

U.S. Dep’t of Commerce, Bureau of Census,

1990 CP-1-4, 1990 Census of Population

Arizona 1 tbl.1 (1992) ................................. 12, 17

U.S. Dep’t of Commerce, Bureau of Census,

PHC-1-4, 2000 Census of Population

Arizona 2 tbl.1 (2002) ................................. 12, 17

U.S. Dep’t of Commerce, Bureau of Census,

CPH-1-4, 2010 Census of Population

Arizona 2 tbl.1 (2012) ................................. 12, 18

1

INTEREST OF AMICUS CURIAE1

The Republican Governors Public Policy

Committee (“RGPPC”) is a Section 501(c)(4) social

welfare organization incorporated in the District of

Columbia. It represents all 27 Republican State

Governors as well as two Republican Territorial

Governors. The RGPPC’s mission includes promoting

social welfare and efficient and responsible

government practices; advocating public policies that

reduce the tax burdens on United States citizens,

strengthen families, promote economic growth and

prosperity, and improve education; and encouraging

citizen participation in shaping laws and regulations

relating to such policies.

The RGPPC possesses has a significant

interest in this important case because it possesses

expertise in the policy matters surrounding election

administration. RGPPC’s filing will assist the Court

in understanding the modern history of Arizona’s

election procedures, along with an understanding of

the importance of the precinct-based election system

and prohibition on unlimited third-party ballot

harvesting. The RGPPC urges the Court to reverse

the Ninth Circuit’s en banc opinion.

Pursuant to Supreme Court Rule 37, amicus curiae states

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

part, and that no entity or person other than amicus curiae and

its counsel made any monetary contribution toward the

preparation and submission of this brief. All parties have filed

blanket consents to the filing of amicus briefs.

1

2

INTRODUCTION & SUMMARY OF THE

ARGUMENT

The en banc opinion of the Ninth Circuit is as

troubling as it is divided. By casting Arizona’s

reasonable and commonplace election regulations as

discriminatory, the majority opinion threatens

states’ ability to pass commonsense laws and

properly administer elections. If allowed to stand,

the opinion would cast doubt on even the most

neutral election regulations.

Contrary to the en banc opinion, Arizona’s

modern election practices demonstrate that Arizona

has almost exclusively expanded access to the

franchise of voting. In fact, over the last four

decades, Arizona has been a leader among the states

in making it easier to register and vote, while taking

appropriate non-discriminatory steps to ensure

integrity in its elections. The en banc opinion

disregards this modern history and fails to account

for the necessity and commonsense nature of the

kind of election regulations at issue.

The election regulations at issue in the

present case are both important to the

administration

of

Arizona’s

elections

and

commonplace across the states. Arizona’s precinctbased voting method is among the procedures that

Arizona, 25 other states, the District of Columbia,

and three United States territories have historically

implemented to orderly administer elections and

preserve ballot secrecy. See JA 730 (Bybee, J.,

dissenting). Arizona’s out-of-precinct policy, which

requires election administrators to only count ballots

cast by voters in their assigned precincts, is

important to the State’s precinct-based voting

3

system. Arizona’s limit on third-party ballot

harvesting—which prevents anyone other than the

elector, election officials, mail carriers, family or

household members, or caregivers from collecting or

possessing an elector’s early voted ballot—is a

commonsense means of protecting election integrity

used by a majority of other states. See JA 739-742

(Bybee, J., dissenting) (collecting statutes).

Nevertheless, the en banc majority focused narrowly

on slight disparate results and Arizona’s ancient

history of racial discrimination in order to determine

that the practices violate Section 2 of the Voting

Rights Act.

The en banc opinion conflicts with multiple

decisions from this Court, as well as those from

various circuit courts of appeal, by focusing the

analysis both too narrowly and too broadly. The

opinion focuses almost entirely on Arizona’s bygone

history between the 1840s and the 1980s, giving

short shrift to any expansion of the franchise within

the last four decades. Specifically, the en banc

opinion places too much weight on decades-old

evidence of discrimination, fails to properly consider

current conditions, and misapplies the “totality of

circumstances” for Section 2 purposes, see 52 U.S.C.

10301(b). The en banc opinion also improperly

imputed unlawful racial animus onto the entire

legislature based on the subjective interpretation of

statements from just a single legislator.

Arizona’s expansion of voting access over the

last 40 years has created abundant opportunities for

Arizonans to vote. Arizonans are no longer required

to plan in-person trips to voting offices months

before an election, fill out a paper voter registration

application, physically travel to a polling place on

4

Election Day, or wait to vote. Arizona now embraces

early voting, no excuse voting by mail, online

paperless

voter

registration,

motor

voter

registration, and more. It is currently easier to vote

in Arizona than at any time in its history. Rather

than acknowledge these advances, the en banc panel

cherry-picked ancient history and extrapolated

subjective motivations from the actions of individual

legislators to determine the ‘intent’ of the

legislature. Such cherry-picking and incorrect

analysis should doom the en banc decision.

ARGUMENT

In order to find a violation of Section 2 of the

Voting Rights Act (“VRA”), a court must establish,

“based on the totality of circumstances,” that a

state’s “political processes” are “not equally open to

participation by members” of a protected class, “in

that its members have less opportunity than other

members of the electorate to participate in the

political process and to elect representatives of their

choice.” 52 U.S.C. 10301(b). Any Section 2 analysis

must examine the “totality” of the state’s election

system, including historical conditions. Id.; see also

Thornburg v. Gingles, 478 U.S. 30, 44-47 (1986).

Another factor in determining whether a challenged

policy violates Section 2 is “whether the policy

underlying the state or political subdivision’s use of

such voting qualification, prerequisite to voting, or

standard, practice or procedure is tenuous.” Id. at 37

(quoting S. Rep. No. 97-417, 97th Cong., 2d Sess. 2829 (1982)).

5

I.

THE SCOPE OF ANY VRA ANALYSIS

NECESSARILY MUST BE TEMPORALLY

LIMITED.

The consideration of discriminatory practices

in electoral history must necessarily be limited in

temporal scope and cannot be too disconnected from

current conditions given the history of race in this

country. Indeed, if one were to look far enough back

in nearly any jurisdiction, such effort would

undoubtedly

yield

examples

of

pervasive

discriminatory practices. But surely not every

jurisdiction

will

possess

unconstitutionally

discriminatory election laws today. Consistent with

this principle, courts have temporally circumscribed

the scope of VRA analyses.

In Northwest Austin Municipal Utility District

Number One v. Holder, this Court noted that Section

5 of the VRA raised federalism concerns due to the

scope of its historical analysis. 557 U.S. 193, 203-206

(2009). Specifically, the Court stated that the VRA

“imposes current burdens [on states] and must be

justified by current needs,” concluding that “a

departure from the fundamental principle of equal

sovereignty requires a showing that a statute’s

disparate geographic coverage is sufficiently related

to the problem that it targets.” Id. at 203 (emphasis

added). Furthermore, the Court stated that Section 5

was troubling because it differentiated between

states in ways that may no longer have been

justified. Id. at 203-204. Ultimately, however, this

Court invoked the canon of constitutional avoidance

and did not rule on the constitutionality of Section 5.

Id. at 206.

6

In the seminal case Shelby County v. Holder,

this

Court

invalidated

the

preclearance

requirements of Section 4 of the VRA due to its

historical relevance. 570 U.S. 529, 557 (2013).

Specifically, the Court so ruled because the

preclearance requirements were no longer justified

by the same concerns that were relevant a halfcentury earlier, when the VRA was passed. Id. The

preclearance coverage formula of Section 4 was

“based on decades-old data and eradicated

practices.” Id. at 551. The Court held that the

Fifteenth Amendment “is not designed to punish for

the past; its purpose is to ensure a better future,”

and if the VRA is to govern the states, it must do so

“on a basis that makes sense in light of current

conditions. It cannot rely simply on the past.” Id. at

553 (emphasis added). This is especially true in

circumstances where the VRA “authorizes federal

intrusion into sensitive areas of state and local

policymaking.” Id. at 545 (quoting Lopez v. Monterey

Cty., 525 U.S. 266, 282 (1999)). These circumstances

are clearly present in the case at hand.

The rationale of Northwest Austin and Shelby

County, that current burdens imposed on states

must be justified by current needs or conditions,

applies across VRA and constitutional analyses. See,

e.g., Veasey v. Abbott, 830 F.3d 216, 328 (5th Cir.

2016) (Elrod, J., concurring in part and dissenting in

part) (applying the “current needs” reasoning of

Northwest Austin to a Section 2 VRA claim), cert.

denied, 137 S. Ct. 612 (2017); Smith v. School Bd. of

Concordia Par., 906 F.3d 327, 338 (5th Cir. 2018)

(Ho, J., concurring) (applying Shelby County’s

“current conditions” rationale to challenge a racial

balancing consent decree); United States v. Cannon,

7

750 F.3d 492, 510-11 (5th Cir. 2014) (Elrod, J.,

concurring) (applying the “current conditions”

reasoning of Shelby County and Northwest Austin to

a Thirteenth Amendment claim), cert. denied, 574

U.S. 1029 (2014); Mance v. Sessions, 896 F.3d 699,

706 (5th Cir. 2018) (per curiam) (observing that, in a

Second Amendment case, “current burdens on

constitutional rights ‘must be justified by current

needs’”) (quoting Shelby Cty., 570 U.S. at 536);

Mayhew v. Burwell, 772 F.3d 80, 96-97 (1st Cir.

2014) (holding that a statute requiring a state to

maintain Medicaid coverage of low-income 19- and

20-year-olds for nine years did not violate the

spending clause, U.S. Const. Art. I, § 8, Cl. 1,

because in part it was sufficiently justified by

“current conditions” under Shelby County) (quoting

Shelby Cty., 570 U.S. at 553), cert. denied, 576 U.S.

1004 (2015).

Consistent with Shelby County and its

progeny, examination of discriminatory practices in

electoral history under Section 2 must be reasonably

limited to examining the current conditions of a

particular state, rather than punishing a state for its

distant past – including actions taken before

becoming a state. In other words, the examination

must be of recent history, relevant to the law or

regulation in question. Undertaking an unlimited

examination of past wrongs reaching back to before

statehood, without balanced consideration of modern

electoral

advances,

deprives

states

and

municipalities of the ability to move on from the

errors of previous generations. Failing to limit the

examination, as the en banc Ninth Circuit did in the

present case, casts a shadow over nearly all election

laws in nearly all states, especially if this Court

8

grants credence to the opinion. Casting aside

reasonable,

neutral,

and

justified

election

administration efforts threatens the very core of

democracy. Such “inflammatory and unsupportable

charges of racist motivation poison the political

atmosphere.” Veasey, 830 F.3d at 281-82 (Jones, J.,

dissenting).

II.

THE TOTALITY OF CIRCUMSTANCES

IN ARIZONA DEMONSTRATES A

CONTINUED

COMMITMENT

TO

EXPANDING ACCESS TO VOTING

RATHER THAN DISCRIMINATION.

A.

The En Banc Majority Based Its

Section 2 Analysis On The Actions

Of Bygone Eras.

Ignoring this Court’s precedents in Northwest

Austin and Shelby County, the majority of the en

banc Ninth Circuit panel below based its historical

analysis on ancient history without any temporal

limit whatsoever. That court devoted large swaths of

its opinion—17 pages in total—to analyzing

examples of racial discrimination starting over 170

years ago with only sporadic and tenuous examples

since the 1960s. The en banc majority’s discussion

includes Arizona’s territorial period, before Arizona

attained statehood, including the “manifest destiny”

beliefs of “[e]arly territorial politicians,” the 1871

Camp Grant Massacre, and the “Indian Wars” of the

1880s. JA 625-626. Also discussed is the racial

composition of Arizona’s 1910 constitutional

convention and provisions of that constitution which

failed to include dual-language provisions. JA 627-

9

628. The en banc majority continues on, discussing

the literacy tests, disenfranchisement, and

intimidation of Hispanics and American Indians in

the early 20th Century. JA 628-635. Then, the en

banc majority engages in a prolonged discussion of

Arizona’s history of VRA litigation from the 1960s

through the 1990s. JA 635-642.

In stark contrast to the 17 pages discussing

Arizona’s first 150 years, the en banc majority cites

only four examples of alleged discrimination in the

past 20 years, most of which are tenuous at best. JA

642-643. These include a one-time change in the

number of Maricopa County polling places for the

2016 Presidential Preference Election and isolated

mistranslation in some Spanish-language voting

materials by Maricopa County in 2012 and 2016. Id.

This recent history is disconnected from the

complained of disparities and is of dubious relevance

to the present case. The recent events discussed by

the en banc majority are also idiosyncratic examples

of the issues that naturally arise when human

beings administer elections. None of the recent

alleged discriminatory actions were the result of any

intentional discrimination on the part of election

workers or government officials whatsoever and the

examples do nothing to highlight any recent history

of discrimination in Arizona under Section 2.

Simply stated, the opinion’s discussion of

Arizona’s history of discriminatory practices, nearly

all of which occurred prior to 30 or 40 years ago, is

protracted, unnecessary, and irrelevant under

Northwest Austin and Shelby County. Arizona’s

modern history of election administration tells a

much different story—namely that Arizona has

continually expanded access to the franchise and

10

made it easier and safer to vote. The decision below,

which failed to consider this contemporary history,

should be reversed in light of Section 2’s totality of

circumstances provisions.

The en banc’s protracted discussion of

Arizona’s history of discrimination also conflicts with

the District Court’s findings of Fact and Conclusions

of Law, which noted that although Arizona does

have a history of discrimination, that history “has

not been linear.” JA 341. For example, the District

Court found that during the entire time Arizona was

under preclearance requirements (1975-2013), the

Department of Justice did not issue a single

objection to any of Arizona’s statewide procedures for

registration or voting. Id. The District Court also

found that Arizona acted to avoid the politics of

racially discriminatory redistricting by forming the

Arizona Independent Redistricting Commission

(“AIRC”) in 2000. Id. Ultimately, the District Court

found that in Arizona:

discriminatory action has been more

pronounced in some periods of state

history than others and each party (not

just one party) has led the charge in

discriminating against minorities over

the

years.

Sometimes,

however,

partisan objectives are the motivating

factor in decisions to take actions

detrimental to the voting rights of

minorities. Much of the discrimination

that has been evidenced may well have

in

fact

been

the

unintended

consequence of a political culture that

simply ignores the needs of minorities.

11

JA 342 (cleaned up) (internal citations and quotation

marks omitted). In sum, the District Court found

that Arizona’s recent history is a “mixed bag”, but

credited Arizona’s many advancements. Id. The en

banc majority thumbed its nose at the true fact

finder, the District Court, and engaged in its own

fact-finding mission, finding new “facts” outside of

the District Court’s findings and ignoring the facts of

the District Court that were simply inconvenient to

the en banc majority’s analysis. See also JA 715

(O’Scannlain, J., dissenting) (“the majority’s lengthy

history lesson on past election abuses in Arizona—

simply ha[s] no bearing on this case. Indeed, pages

47 to 81 of the majority’s opinion may properly be

ignored as irrelevant.”).

B.

Arizona’s

Modern

History

Demonstrates A Continued Effort

To Expand Voting Access While

Ensuring Election Integrity.

Contrary to the en banc majority’s efforts to

impose current burdens on Arizona for past

conditions, the last 40 years demonstrate that

Arizona has continually expanded access to the

franchise of voting while taking steps to protect

election integrity. Any examination of Arizona’s

modern history must begin with a review of ,the

state’s recent changes in population. Over the

previous 40 years, Arizona has grappled with an

explosive rate of population growth. The 1980

Census showed that Arizona had a population of

12

approximately 2.7 million people.2 Ten years later, in

1990, Arizona had approximately 3.6 million

residents.3 By 2000, Arizona had a population of

approximately 5.1 million people.4 By the 2010

Census, Arizona had approximately 6.4 million

residents.5 Current 2020 Census estimates put the

State’s population at 7.2 million people.6

In response to its rapid population growth,

Arizona enacted numerous voting advancements to

make registering to vote secure and accessible and to

make the act of voting itself easier. Arizona’s modern

advancements in electoral mechanics have only

made voting easier, not harder, and more secure. Far

from the incendiary story told by the en banc

majority below, the reality is that the current

conditions, see Shelby Cty., 570 U.S. at 553, in

Arizona do not demonstrate any significant racial

discrimination in election administration sufficient

to justify relief under Section 2.

2 U.S. Dep’t of Commerce, Bureau of the Census, PC80-1-B1,

1980 Census of Population U.S. Summary 1-124 tbl.61 (1983),

https://www2.census.gov/prod2/decennial/documents/1980/1980

censusofpopu8011u_bw.pdf.

3 U.S. Dep’t of Commerce, Bureau of Census, 1990 CP-1-4, 1990

Census

of

Population

Arizona

1

tbl.1

(1992),

https://www2.census.gov/library/publications/decennial/1990/cp

-1/cp-1-4.pdf.

4 U.S. Dep’t of Commerce, Bureau of Census, PHC-1-4, 2000

Census

of

Population

Arizona

2

tbl.1

(2002),

https://www.census.gov/prod/cen2000/phc-1-4.pdf.

5 U.S. Dep’t of Commerce, Bureau of Census, CPH-1-4, 2010

Census

of

Population

Arizona

2

tbl.1

(2012),

https://www2.census.gov/library/publications/2012/dec/cph-14.pdf.

6 U.S. Census Bureau, QuickFacts: Arizona (last accessed

December 5, 2020), https://www.census.gov/quickfacts/AZ.

13

1. Arizona’s Motor Voter Law.

In 1982, Arizona enacted a Motor Voter law

providing for voter registration when residents apply

for a driver’s license. See Ariz. Rev. Stat. §§ 16-111

and 16-112. Arizona’s Motor Voter provisions were

approved by initiative petition during the 1982

general election, predating by 11 years the National

Voter Registration Act of 1993 enacted by Congress.

Id. The measure was intended to increase Arizona’s

voter registration and voting rates.7 Voting rates

were reportedly low at that time due to a high

proportion of recently arrived residents and senior

citizens who had difficulty registering to vote. See

Argument “For” Proposition 202, supra note 7, at 42.

Arizona’s Motor Voter provisions aimed to increase

the State’s registration rates with appropriate

verification of eligibility and in turn increase voter

participation rates. Id. And it worked. In the

following four years, the number of Arizona’s

registered voters increased by over 40%.8 In the

years following 1982, the Arizona Secretary of State

and the Director of the Transportation Department

met annually to discuss additional ways to securely

improve voter registration through Arizona’s Motor

Voter provisions.9

7

Argument “For” Proposition 202, Arizona Initiative and

Referendum Publicity Pamphlet General Election 1982 at 42,

available at https://azmemory.azlibrary.gov/digital/

collection/statepubs/id/10849.

8 See Ariz. Sec’y of State, Historical Election Results &

Information

(last

accessed

December

5,

2020),

https://azsos.gov/elections/voter-registration-historical-electiondata/historical-election-results-information.

9 Matt A. Barreto et al., Online Voter Registration (OLVR)

Systems

in

Arizona

and

Washington

82

(2010),

14

2. Online Voter

Arizona.

Registration

in

As a result of continued work by Arizona’s

leaders, the state made access to voting even easier

in 2002 when it became the first state in the country

to provide for secure online voter registration. See

Barreto et al., supra note 9 at 37. Arizona’s efforts

predated all other states in online voter registration

by five years. See id. at 100. Arizonans now have the

ability and the option to securely register to vote

online, in person, or by mail. Online voter

registration not only conserves resources that

election administrators can now use to better

educate voters, but the online voter registration

system can also be easily used by non-English

speakers because Spanish translation is readily

available. Id. at 67. Arizona’s online voter

registration quickly became the most popular way to

register to vote. Id. at 73.

3. Voting By Mail in Arizona.

Over the last 40 years, Arizona has also

continuously made voting itself easier in the state by

making it easier to securely vote by mail. In 1984,

Arizona began providing a mechanism whereby

voters could request absentee ballots for both a

primary and general election with a single request.

See H.R. 2040, 36th Leg., 2d Reg. Sess., 1984 Ariz.

Sess. Laws 984 (Ariz. 1984) (codified at Ariz. Rev.

Stat. §§ 16-542, 544, 547-8, 584). This change made

it much easier to vote absentee because voters need

https://www.pewtrusts.org/-/media/legacy/uploadedfiles/pcs_

assets/ 2010/onlinevoterregpdf.pdf.

15

only submit one absentee ballot request for two

elections rather than the previous method requiring

separate absentee ballot requests for each election.

Id. However, voters were still required to submit an

absentee ballot request 90 days before the Saturday

preceding an election, and voters were still required

to provide an excuse to vote absentee. Id. at 1984

Ariz. Sess. Laws 984-85.

In 1997 Arizona again increased access to

voting by mail, changing its absentee voting

procedures to encompass early voting. H.R. 2040,

36th Leg., 2d Reg. Sess., 1984 Ariz. Sess. Laws 985

(Ariz. 1984). Arizona removed any requirement that

voters have an excuse to vote by mail and

transformed absentee voting into early voting. S.

1003, 43rd Leg., 2d Spec. Sess., 1997 Ariz. Sess.

Laws 3063, 3071-3072 (Ariz. 1997) (relevant changes

codified at Ariz. Rev. Stat. §§ 16-541 and 542).

Voters no longer need to have a justification to vote

early or by mail, and can now do so for any reason or

no reason at all. These changes also expanded the

time period during which to file vote-by-mail

requests, which, after verification, allow voters to file

requests for mail-in ballots up until 11 days prior to

an election. Id. Early voting is now “the most

popular method of voting” in Arizona, “accounting

for approximately 80 percent of all ballots cast in the

2016 election.” JA 259.

In 2007 Arizona created a permanent early

voting list, making it even easier to vote by mail.

H.R. 2106, 48th Leg., 1st Reg. Sess., 2007 Ariz. Sess.

Laws 641, 644 (Ariz. 2007) (relevant changes

codified at Ariz. Rev. Stat. § 16-544). Arizona’s

permanent early voting list eliminated the need for

voters to request vote-by-mail ballots year after year.

16

A voter need only ask to be placed on the permanent

early voting list once, and that voter automatically

receives an early voting ballot prior to each election.

Id. Additionally, any voter may vote early in person

at any early voting location up until 5:00 p.m. on the

Friday preceding the election. Ariz. Rev. Stat. § 16542(E). Arizona’s early voting provisions make it

substantially easier for Arizonans to vote, greatly

increasing the likelihood that they will vote.

C.

Arizona’s Actions To Increase

Access To The Franchise Of

Voting Have Worked.

Arizona’s efforts to make voting easier have

worked. Even though Arizona has experienced an

unprecedented explosion in population growth over

the last four decades, its voter engagement has

increased at an even greater rate. This is a credit to

Arizona’s efforts, because such a quick explosion in

population growth and residential mobility would

ordinarily result in lower voter registration and

turnout.10 Such a reduction in voter engagement

rates could be due to a number of circumstances

such as difficulty or delay in registering to vote after

becoming a new resident.

However, through its steadfast efforts to

increase secure access to the franchise of voting,

Arizona has overcome this trend. In 1980, while the

state had a population of approximately 2.7 million

10 See Squire, P., Wolfinger, R., & Glass, D. (1987). Residential

Mobility and Voter Turnout. American Political Science

Review, 81(1), 45-65. doi:10.2307/1960778; see also Jaume

Magre et al., Moving to Suburbia? Effects of Residential

Mobility on Community Engagement, 53 Urb. Stud. 17 (2016).

17

people,11 it had only 1.1 million registered voters,12

with 898,193 turning out to vote during that year’s

presidential election.13 That translates to a 41%

overall voter registration rate, not accounting for

voting age, citizenship, or other eligibility criteria

and an 80% voter turnout rate during a presidential

election. Ten years later, Arizona had over 3.6

million residents,14 over 1.8 million registered

voters,15 and over 1 million turning out to vote

during the 1992 presidential election.16 Arizona’s

overall voter registration rate was by this point over

50%, accounting for an increase of about 9% in ten

years and presidential election year turnout of

nearly 77%. By 2000, Arizona had a population of

over 5.1 million people,17 voter registration over 2.1

million,18 and over 1.5 million turning out to vote

11 U.S. Dep’t of Commerce, Bureau of the Census, PC80-1-B1,

1980 Census of Population U.S. Summary 1-124 tbl.61 (1983),

https://www2.census.gov/prod2/decennial/documents/1980/1980

censusofpopu8011u_bw.pdf.

12

Ariz. Sec’y of State, 1980 Voter Registration,

https://apps.azsos.gov/election/VoterReg/History/Year/1980.pdf.

13 Ariz. Sec’y of State, 1980 General Election Canvass,

https://azsos.gov/sites/default/files/canvass1980ge.pdf.

14 U.S. Dep’t of Commerce, Bureau of Census, 1990 CP-1-4,

1990 Census of Population Arizona 1 tbl.1 (1992),

https://www2.census.gov/library/publications/decennial/1990/cp

-1/cp-1-4.pdf.

15

Ariz. Sec’y of State, 1990 Voter Registration

https://apps.azsos.gov/election/VoterReg/History/Year/1990.pdf

16 Ariz. Sec’y of State, 1992 General Election Canvass,

https://azsos.gov/sites/default/files/canvass1992ge.pdf.

17 U.S. Dep’t of Commerce, Bureau of Census, PHC-1-4, 2000

Census

of

Population

Arizona

2

tbl.1

(2002),

https://www.census.gov/prod/cen2000/phc-1-4.pdf.

18 Ariz. Sec’y of State, State of Arizona Registration Report:

2000

General

Election,

https://apps.azsos.gov/election/

voterreg/2000-11-01.pdf.

18

during that year’s presidential election.19 Arizona’s

overall voter registration rate by 2000 was over 42%,

slightly lagging behind the staggering increase in

population during the 1990’s, and a voter turnout of

over 71%. Ten years later, Arizona had

approximately 6.4 million residents,20 with 3.1

million registered voters,21 and 2.3 million voters

turning out during the 2012 presidential election.22

Arizona’s overall voter registration rate by 2010 was

approximately 49%, and increasing voter turnout

during the 2012 presidential election to over 74%.

This year, estimates place the State’s population at

7.2 million people,23 with nearly 4.3 million

registered voters, and over 3.4 million voters turning

out in last month’s presidential election.24 Arizona’s

total voter registration rate is now at nearly 59%-the most in history—with voter turnout during the

2020 election at nearly 80%. What these figures

demonstrate is that Arizona’s efforts to increase

access to the franchise, and to make voting secure

19 Ariz. Sec’y of State, State of Arizona Official Canvass: 2000

General

Election,

https://apps.azsos.gov/election/2000/

General/Canvass2000GE.pdf.

20 U.S. Dep’t of Commerce, Bureau of Census, CPH-1-4, 2010

Census of Population Arizona 2 tbl.1 (2012), https://

www2.census.gov/library/publications/2012/dec/cph-1-4.pdf.

21 Ariz. Sec’y of State, State of Arizona Registration Report:

2012 General Election, https://apps.azsos.gov/election/voterreg/

2012-10-30.pdf.

22 Ariz. Sec’y of State, State of Arizona Official Canvass: 2012

General Election, https://apps.azsos.gov/election/2012/General/

Canvass2012GE.pdf.

23 QuickFacts: Arizona, U.S. Census Bureau (last accessed May

30, 2020), https://www.census.gov/quickfacts/AZ.

24 Ariz. Sec’y of State, State of Arizona Official Canvass: 2020

General

Election,

https://azsos.gov/sites/default/files/2020_

General_State_Canvass.pdf.

19

and easier, have worked. Recent voter participation

in Arizona has kept up with, and even outpaced, the

incredible population growth the state has seen over

the last 40 years.

Unfortunately, not one of the preceding

examples were mentioned by the en banc majority

below when analyzing the totality of the

circumstances. Yet these examples demonstrate that

when viewing Arizona’s electoral background

through the lens of modern rather than ancient

history, it is obvious that the state has provided

nearly every opportunity within reason to expand

access to the franchise. And those provisions have

worked. Therefore, when the proper totality of the

circumstances analysis is conducted, it becomes clear

that Arizona is not impermissibly discriminating in

access to voting—indeed, the process is as open as it

has ever been.

III. ARIZONA’S PRECINCT-BASED VOTING

SYSTEM

AND

PROHIBITION

ON

UNLIMITED THIRD-PARTY BALLOT

HARVESTING

ARE

STRONGLY

JUSTIFIED.

Prohibiting unlimited out-of-precinct voting

and unlimited third-party ballot harvesting is

strongly justified by Arizona’s interests in

administering efficient and secure elections. Cf. JA

656 (“The only plausible justification for Arizona’s

[out-of-precinct] policy would be the delay and

expense entailed in counting [out-of-precinct]

ballots.”); Cf. JA 666-670. These justifications more

than make up for any minor inconvenience voters

experience by way of the policy.

20

Arizona has an undeniable interest in the

orderly administration of its elections, including the

need to prevent fraud and irregularities, to quickly

and efficiently report election results, and to promote

faith and certainty in election results. See Nader v.

Brewer, 531 F.3d 1028, 1040 (9th Cir. 2008). The

2020 General Election has only reinforced that these

interests are at the very least compelling, if not

imperative. See also Crawford v. Marion Cty.

Election Bd., 553 U.S. 181, 225 (2008) (Souter, J.,

dissenting) (“There is no denying the abstract

importance, the compelling nature, of combating

voter fraud.”); Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 364 (1997) (“States certainly

have an interest in protecting the integrity, fairness,

and efficiency of their ballots and election processes

as means for electing public officials.”); Miracle v.

Hobbs, No. 19-17513, 808 Fed. Appx. 470, 473 (9th

Cir. May 1, 2020) (“[T]he public also wants

guarantees of a fair and fraud-free election, and a

state ‘indisputably has a compelling interest in

preserving the integrity of its election process.’”)

(citing Eu v. S.F. Cty. Democratic Cent. Comm., 489

U.S. 214, 231 (1989)).

A. Arizona’s Interests

Precinct Policy.

In

Its

Out-Of-

Arizona’s prohibition on out-of-precinct voting

makes voting more convenient. It permits election

administrators to account for the numbers of voters

who can vote in the same location. See Sandusky

Cty. Democratic Party v. Blackwell, 387 F.3d 565,

569 (6th Cir. 2004); Pet. 16-17. Too many voters

utilizing a single polling place could lead to long wait

21

times, overwhelmed election administrators, and

disenfranchised voters. Secondly, it makes each

polling place responsible for listing only those

elections relevant to the voters in that precinct.

Blackwell, 387 F.3d at 569. This makes ballots less

confusing, streamlines information for local elections

officials, and encourages voting in local elections. See

JA 727-728 (Bybee, J., dissenting).

Arizona is also justified in preventing out-ofprecinct voting in order to ensure more secure and

legitimate elections, and to prevent the potential for

fraud, impropriety, or the appearance thereof. First,

as discussed above, preventing out-of-precinct voting

essentially caps the number of voters for which each

precinct-level election official is responsible for

assisting and managing. This makes it easier for

election administrators to “monitor votes and

prevent election fraud.” Blackwell, 387 F.3d at 569.

Second, prohibiting out-of-precinct voting also helps

increase the secrecy and privacy of the ballot. In

submitting a ballot directly to an election official in a

voter’s precinct, rather than to one who could be

stationed hundreds of miles away from her county,

the possibility that others might view, record, or

tamper with her ballot is significantly reduced. See

Miller v. Picacho Elementary Sch. Dist. No. 33, 877

P.2d 277, 279 (Ariz. 1994).

If Arizona counties are forced to accept out-ofprecinct votes, they, and the out-of-precinct voters,

will not only encounter difficulties with voting wait

times, but also problems with ballot security and

privacy. For example, if an out-of-precinct ballot is

accepted, the polling place will have to identify the

voter and determine which out-of-precinct elections

the voter is eligible to vote in before recording the

22

voter’s vote for those eligible offices. See JA 656-657.

This identification would threaten the secrecy of the

out-of-precinct voter’s ballot. Further, that ballot

would have to be transmitted from the distant

precinct to the voter’s home precinct, which could be

in a completely different county. Through what

mechanism and in what timeframe must these outof-precinct ballots be transmitted or transported to

the correct precincts, while maintaining privacy and

security? There are currently no approved

mechanisms, processes, statutes or regulations in

place for doing so while preserving chain-of-custody.

To develop such a mechanism would be incredibly

time intensive, costly, and far from foolproof.

Alternatively, given the challenges associated

with transporting or transmitting ballots to the

proper precinct under the en banc majority’s opinion,

out-of-precinct voters may only be able to vote for

statewide races in that foreign precinct, or for races

relevant to both the home and distant precincts.

That regime creates disenfranchisement as well,

because it would prevent people from voting in local

elections. It could also result in election results

marred by human error, as election administrators

would be responsible for determining whether that

voter is eligible or registered to vote in another

precinct, and whether that voter has already voted

elsewhere. Further, that regime would raise serious

questions as to how those out-of-precinct ballots

should be tabulated for election result and turnout

data. It might even result in more ballots being cast

in a precinct than people who live there. This

occurrence would only increase the public’s mistrust

and skepticism of the electoral system, a growing

problem highlighted during the 2020 election cycle.

23

B. Arizona’s Interests In Its Limits On

Ballot Harvesting.

Similarly, prohibiting unlimited third-party

ballot harvesting in Arizona makes voting there

more secure and helps ensure election integrity. See

Pet. 17-19, 25-26; Br. of State Petitioners at 47-49.

The State’s existing electoral framework is

sufficiently broad to allow ample opportunity for

electors to easily vote, without opening the door to

the insecurity created by unlimited ballot

harvesting. See supra. Indeed, fraud in ballot

harvesting has been documented in other parts of

the country and by other courts. See JA 531-575

(North Carolina State Board of Elections Order

requiring a special election for the 9th Congressional

District due to ballot harvesting fraud); Pabey v.

Pastrick, 816 N.E.2d 1138 (Ind. 2004) (ordering a

special election due to ballot harvesting fraud); see

also Crawford, 553 U.S. at 195 n.12 (plurality

opinion) (“much of the fraud was actually absentee

ballot fraud”). Courts across the nation have upheld

similar prohibitions in the name of election integrity.

See, e.g., Ray v. Texas, No. 2-06-CV-385 (TJW), 2008

U.S. Dist. LEXIS 59852 (E.D. Tex. Aug. 7, 2008)

(rejecting challenge to Texas statute criminalizing

signing as a witness for more than one early voting

ballot application); see also Qualkinbush v. Skubisz,

826 N.E.2d 1181 (Ill. App. Ct. 2004) (holding that a

statute restricting who is eligible to return an

absentee ballot did not conflict with the Voting

Rights Act); DiPietrae v. City of Phila., 666 A.2d

1132 (Pa. Commw. Ct. 1995) (upholding a

Pennsylvania statute limiting agent-delivery for

absentee ballot applications and absentee ballots).

24

See also DCCC v. Ziriax, 2020 U.S. Dist. LEXIS

170427, at *36-43, *62-67 (N.D. Okla. 2020)

(discussing Oklahoma’s interest in preventing fraud

and upholding that state’s ballot harvesting

prohibition); Crossey v. Boockvar, 2020 Pa. LEXIS

4868

(Pa.

2020)

(upholding

Pennsylvania’s

prohibition on ballot harvesting); Troy Closson, New

Local Election Ordered in N.J. After Mail-In Voter

Fraud Charges, N.Y. Times (Aug. 19, 2020),

https://www.nytimes.com/2020/08/19/nyregion/njelection-mail-voting-fraud.html

(discussing

invalidation of Paterson, New Jersey election due to

widespread fraud and corruption stemming from

ballot harvesting).

Arizona’s justifications for its out-of-precinct

voting and ballot harvesting policies are also

balanced with the fact that, in making it easier to

vote, Arizona and its counties provide a litany of

more secure ways for individuals to vote. Some of

these methods, such as early voting by mail, do not

even require the voter to be present in their home

precinct at the time they cast their vote. Accordingly,

the “need” for voters to be able to cast out-of-precinct

ballots at any polling place is hardly persuasive, and

raises substantial risk that such court ordered

actions could undermine confidence in the electoral

system.

25

IV. LEGISLATION

SHOULD

NOT

BE

INVALIDATED BECAUSE OF COURTS’

SUBJECTIVE INTERPRETATIONS OF

THE

ACTIONS

OF

A

SINGLE

LEGISLATOR.

Rather than impute worthy motivation upon

the Arizona Legislature for its decades of successful

efforts to increase access to the franchise, the en

banc majority of the Ninth Circuit imputed unlawful

racial animus to the entire body based on statements

from just a single legislator. JA 677. As an initial

matter, that particular legislator clearly lacked

significant influence over the legislature. His lack of

meaningful influence is plainly evidenced by his

2018 expulsion from the Arizona House of

Representatives by a 56-3 vote.25 Nevertheless, even

if the circumstances of that particular legislator

were different, it is inappropriate to invalidate a

statute, especially one concerning such a “ sensitive

area[] of state and local policymaking”, Shelby Cty.,

570 U.S. at 545 (quoting Lopez, 525 U.S. at 282), in

light of the subjective interpretations of statements

by one legislator, or even a small group of legislators.

“[D]iscerning the subjective motivation of

those enacting the statute is, to be honest, almost

always an impossible task. The number of possible

motivations, to begin with, is not binary, or indeed

even finite.” Edwards v. Aguillard, 482 U. S. 578,

636-37 (Scalia, J., dissenting). Furthermore, courts

“cannot of course assume that every member present

(if, as is unlikely, we know who or even how many

they were) agreed with the motivation expressed in a

See Ariz. Legislature, Bill History for HR2003,

https://apps.azleg.gov/BillStatus/BillOverview/70748.

25

26

particular legislator's preenactment floor or

committee statement” let alone staff-prepared

committee reports they might have read,

postenactment statements, or media coverage. Id.

Then comes the question of how many legislators

must have supposedly harbored malevolent

perspectives in order to impute improper

motivation? See id. at 638-39. Is, as was the instance

in this case, one enough?

In United States v. O'Brien, this Court refused

to strike down a statutory amendment due to the

alleged motivation of a subset of members of

Congress. 391 U.S. 367, 382-84 (1968). The Court

said: “Inquiries into congressional motives or

purposes are a hazardous matter. . . . What

motivates one legislator to make a speech about a

statute is not necessarily what motivates scores of

others to enact it, and the stakes are sufficiently

high for us to eschew guesswork.” Id. at 383-84. And

it declined to void the amendment at issue

“essentially on the ground that it is unwise

legislation . . . and which could be reenacted in its

exact form if the same or another legislator made a

‘wiser’ speech about it.” Id.

Further, the presumption of legislative good

faith is a strong one to overcome, especially through

the actions of a single legislator. In Abbott v. Perez, a

three-judge panel found that the 2013 Texas

Legislature had acted with discriminatory intent in

passing a new redistricting plan after its 2011 plan

was denied preclearance under the Voting Rights

Act. 138 S. Ct. 2305, 2318 (2018). The panel first

stated that the burden was on the challengers but

then flipped it based on who passed the 2013 law: a

Legislature with “substantially similar” membership

27

and the “same leadership” that passed the flawed

2011 plan. Perez v. Abbott, 274 F. Supp. 3d 624, 645–

46, 648 n.37 (W.D. Tex. 2017). Because the entity

that passed both plans remained the same, the court

“flip[ped] the evidentiary burden on its head,”

requiring Texas to show that the 2013 Legislature

had “purged the ‘taint’” of the unlawful 2011 plan.

Abbott, 138 S. Ct. at 2324–25. This Court reversed

the panel’s “fundamentally flawed” analysis. Id. at

2326. The panel had erred because it had “reversed

the burden of proof [and] [] imposed on the State the

obligation of proving that the 2013 Legislature had

experienced a true ‘change of heart.’” Id. at 2325

(quoting Perez, 274 F. Supp. 3d at 649). Its finding of

discriminatory intent had “relied overwhelmingly on

what it perceived to be the 2013 Legislature’s duty to

show that it had purged the bad intent of its

predecessor.” Id. at 2326 n.18. What was relevant

was “the intent of the 2013 Legislature.” Id. at 2327.

And that legislature was to be afforded “the

presumption of legislative good faith” and not

condemned based on prior bad acts. Id. at 2324. This

Court made it clear that “[t]he allocation of the

burden of proof and the presumption of legislative

good faith are not changed by a finding of past

discrimination.” Id. Any history of discrimination

must be weighed “with any other direct and

circumstantial evidence of th[e] Legislature's intent.”

Id. at 2327. See also N.C. State Conference of the

NAACP v. Raymond, No. 20-1092, 2020 U.S. App.

LEXIS 10972 (4th Cir. Apr. 7, 2020) (accord).

The weight of one singular legislator,

especially one whose actions are attenuated, at best,

to the resultant policies, is hardly enough to

outweigh the Arizona Legislature’s presumption of

28

good faith. Accordingly, the answer to the question of

whether the discriminatory intent of one legislator—

even assuming that legislator’s intent can be

discerned at all—is sufficient or even relevant for

Section 2 purposes must be answered in the

negative. The en banc majority of the Ninth Circuit

erred in doing just that.

V. IF

ARIZONA’S

NEUTRAL

AND

REASONABLE ELECTION REGULATIONS

ARE “DISCRIMINATORY,” NEARLY ALL

STATE ELECTION LAWS ARE IN

DANGER.

Indeed, given Arizona’s successful efforts to

increase election security and access to the franchise

of voting, and also in light of the complete neutrality

of the laws at issue, nearly any election law in any

state is threatened if the en banc majority’s opinion

is left to stand. Under the en banc majority opinion,

even the most mundane and neutral election laws

are vulnerable to challenge under Section 2 if some

microscopic statistical discrepancy exists in voting, if

discrimination occurred in that state at some point

in its history, or if some legislator who supported the

law says something that is subjectively decided to

have racist undertones. Indeed, that is exactly what

happened in the present case. Such threats are very

real, especially considering that an examination of

the history of nearly any jurisdiction will yield

examples of racial discrimination at one point or

another.

Furthermore, there is nothing novel about

Arizona’s out of precinct policy or its limits on thirdparty ballot harvesting. JA 729-730 (Bybee, J.,

29

dissenting). Besides Arizona, twenty-five states, the

District of Columbia, and three United States

territories disqualify ballots cast in the wrong

precinct. Id. The states with such policies represent

every region of the country and transcend party

lines, with some led by Republicans, some led by

Democrats, and some led by both. Id. A majority of

states also place limits on the harvesting of ballots.

See JA 739-742 (Bybee, J., dissenting) (collecting

statutes). Simply put, the provisions invalidated by

the en banc majority are widely-implemented

election regulations.

Because of the large number of states that

possess substantially similar election regulations to

Arizona, and because nearly every state has some

unfortunate history of discrimination based on race,

nearly every state of the union will suddenly possess

potentially illegal election regulations overnight if

this Court condones the en banc majority’s opinion.

Operating under the constant threat of VRA

litigation would devastate states and their election

administration efforts. The threat of needless VRA

litigation would have the primary effect of making

election administration incredibly expensive and

damage the public’s confidence in election

administrators. Secondly, such needless and

constant litigation would waste valuable judicial

resources and inundate dockets nationwide.

With so much at stake and with only facially

neutral laws at issue, the opinion of the en banc

majority of the Ninth Circuit should not and cannot

stand.

30

CONCLUSION

For the aforementioned reasons, amicus

curiae respectfully requests this Court grant

Petitioners’ requested relief.

Respectfully submitted,

Jason Torchinsky

Counsel of Record

Dennis W. Polio

Holtzman Vogel

Josefiak Torchinsky PLLC

15405 John Marshall Hwy.

Haymarket, VA 20169

(540) 341-8808

(540) 341-8809

Jtorchinsky@hvjt.law

Jessica Furst Johnson

General Counsel

Republican Governors Public

Policy Committee

1747 Pennsylvania Avenue NW

Suite 250

Washington, D.C. 20006

(202) 662-4140

jjohnson@RGA.org

Counsel for Amicus Curiae