Amicus Curiae Brief — Mark Brnovich, Attorney General of Arizona, et al., Petitioners v. Democratic National Committee, et al.
Supreme Court briefDec 7, 2020
Ask Donna
What actually matters in this document.
Text
Nos. 19-1257 & 19-1258
In the Supreme Court of the United States
———————
MARK BRNOVICH, ATTORNEY GENERAL OF ARIZONA, ET
AL., PETITIONERS,
v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.
———————
ARIZONA REPUBLICAN PARTY, ET AL., PETITIONERS,
v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.
———————
On Writs of Certiorari to the
United States Court of Appeals for the Ninth Circuit
———————
BRIEF OF AMICUS CURIAE
GOVERNOR KRISTI NOEM
SUPPORTING PETITIONERS
———————
GENE C. SCHAERR
Counsel of Record
ERIK S. JAFFE
HANNAH C. SMITH
KATHRYN E. TARBERT
JOSHUA J. PRINCE
SCHAERR|JAFFE LLP
1717 K St. NW, Suite 900
Washington, DC 20006
(202) 787-1060
gschaerr@schaerr-jaffe.com
QUESTION PRESENTED
This brief addresses the following question,
which corresponds to Question 1 in both consolidated
cases:
Whether Section 2 of the Voting Rights Act
compels states to authorize any voting practice
that would be used disproportionately by racial
minorities, even if existing voting procedures are
race-neutral and offer all voters an equal
opportunity to vote.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................... i
TABLE OF CONTENTS ............................................. ii
TABLE OF AUTHORITIES ....................................... iv
INTRODUCTION AND INTERESTS OF AMICUS .. 1
STATEMENT .............................................................. 3
SUMMARY OF ARGUMENT ..................................... 4
ARGUMENT ................................................................ 6
I. This Court Should Interpret Section 2
Consistently With The Limitations Of The
Fourteenth And Fifteenth Amendments’
Enforcement Clauses. ............................................ 6
A. Election laws violate the Fourteenth and
Fifteenth Amendments only when they deny or
abridge the right to vote as a result of
purposeful discrimination. ................................ 6
B. The Ninth Circuit’s interpretation of Section 2,
which allows courts to enjoin even race-neutral
state election laws if they result in a “more
than de minimis” statistical disparity, is
unconstitutional. ............................................. 10
C. This Court should interpret Section 2 so that it
goes no further than the limits of the
Fourteenth and Fifteenth Amendments by
holding that it prohibits only those state
election laws motivated by purposeful
discrimination. ................................................ 14
iii
II. State Officials Need A Clear Rule To Avoid
Confusion And Ensure The Efficient
Administration Of Elections. ............................... 15
CONCLUSION .......................................................... 18
APPENDIX A - STATE ELECTION OFFICIALS
AND LEGISLATORS ........................................... 1a
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Celebrezze,
460 U.S. 780 (1983) ...................................... 9, 14, 16
Arlington Heights v. Metrop. Housing Dev. Corp.,
429 U.S. 252 (1977) ..................................................8
Bullock v. Carter,
405 U.S. 134 (1972) ................................................ 16
Burdick v. Takushi,
504 U.S. 428 (1992) .................................. 5, 9, 15, 17
Chisom v. Roemer,
501 U.S. 380 (1991) .......................................... 11, 12
City of Boerne v. Flores,
521 U.S. 507 (1997) .................................... 1, 2, 7, 12
City of Mobile v. Bolden,
446 U.S. 55 (1980) .................................... 7, 8, 10, 14
City of Rome v. United States,
446 U.S. 156 (1980) ................................................ 12
Clingman v. Beaver,
544 U.S. 581 (2005) ............................................ 9, 14
Crawford v. Marion County Election Bd.,
553 U.S. 181 (2008) ...................................... 9, 10, 14
Houston Lawyers’ Ass’n v. Attorney Gen. of Texas,
501 U.S. 419 (1991) ................................................ 15
Johnson v. De Grandy,
512 U.S. 997 (1994) ................................................ 12
v
Lassiter v. Northampton Cnty. Bd. of Elections,
360 U.S. 45 (1959) .............................. 8, 9, 10, 15, 17
Lopez v. Monterey Cnty.,
525 U.S. 266 (1999) ................................................ 12
Miss. Republican Exec. Comm. v. Brooks,
469 U.S. 1002 (1984) .............................................. 11
Morrison v. Olson,
487 U.S. 654 (1988) ................................................ 12
NLRB v. Catholic Bishop of Chicago,
440 U.S. 490 (1979) .......................................... 13, 14
Reno v. Bossier Parish Sch. Bd.,
520 U.S. 471 (1997) .................................. 1, 8, 12, 14
Reno v. Bossier Parish Sch. Bd.,
528 U.S. 320 (2000) ..................................................8
Shelby Cnty. v. Holder,
570 U.S. 529 (2013) .................................... 2, 3, 6, 16
Smiley v. Holm,
285 U.S. 355 (1932) ................................................ 16
South Carolina v. Katzenbach,
383 U.S. 301 (1966) .......................................... 1, 7, 8
Storer v. Brown,
415 U.S. 724 (1974) ................................................ 15
Thornburg v. Gingles,
478 U.S. 30 (1986) .................................................. 11
Constitutional Provisions
U.S. Const. art. I, §4 .............................................. 6, 15
U.S. Const. amend. XIV, §5 ..................................... 1, 8
U.S. Const. amend. XV, §1 .......................................... 7
vi
U.S. Const. amend. XV, §2 .................................. 1, 7, 8
Statutes
52 U.S.C. §10301(b) ................................................... 11
52 U.S.C. §10301(a) ............................................. 11, 14
A.R.S. §16-1005 ............................................................3
A.R.S. §16-122 ..............................................................3
Other Authorities
Roger Clegg & Hans A. von Spakovsky,
“Disparate Impact” and Section 2 of the Voting
Rights Act (2014) ......................................................7
INTRODUCTION AND
INTERESTS OF AMICUS 1
Section 2 of the Fifteenth Amendment gives
Congress “full remedial powers to effectuate the
constitutional
prohibition
against
racial
discrimination in voting”—but nothing further. South
Carolina v. Katzenbach, 383 U.S. 301, 326 (1966). In
the Equal Protection context, the same is true of §5 of
the Fourteenth Amendment. City of Boerne v. Flores,
521 U.S. 507, 520 (1997); Reno v. Bossier Parish Sch.
Bd., 520 U.S. 471, 481-482 (1997) (Bossier I). Yet, as
amended, §2 of the Voting Rights Act lacks a “proof of
discriminatory intent” requirement, Bossier I, 520
U.S. at 482 (cleaned up), and a violation of §2 is
therefore not “a fortiori a violation of the
Constitution.” Ibid.
For this reason, §2 raises serious constitutional
questions: Any valid exercise of Congress’s power
under either the Fourteenth or Fifteenth
Amendments
requires
proof
of
purposeful
discrimination. But the Ninth Circuit’s holding that
anything “more than a de minimis” statistical
disparity is enough to implicate §2 pushes the statute
well past constitutional limits. JA 619, 621. That
holding means that state legislators violate §2, not
just when they intentionally discriminate against
their citizens because of race (or even substantially
1 All parties have consented to the filing of this brief. No counsel
for a party authored it in whole or in part, nor did any person or
entity, other than amicus or her counsel, make a monetary
contribution to fund the brief’s preparation or submission.
2
burden their right to vote at all), but because of minor
statistical differences in election turnout.
That interpretation imposes requirements on state
legislatures that Congress lacked the authority to
adopt under the Fourteenth and Fifteenth
Amendments, and it should be reversed. In so doing,
the Court should take this opportunity to clarify §2’s
proper scope, guided by a firm understanding of the
“remedial, rather than substantive,” nature of the
Fourteenth and Fifteenth Amendment’s Enforcement
Clauses. See City of Boerne, 521 U.S. at 520.
Specifically, the Court should hold that §2 prohibits
only those election laws (a) that are motivated by
purposeful discrimination and (b) that deny or abridge
the right to vote by substantially burdening that right
beyond the ordinary burdens of voting.
As governor of South Dakota, Governor Kristi
Noem has a strong interest in the administration of
functional, secure, and nondiscriminatory election
systems. Like the roughly ten thousand state and local
election officials from around the country, see
Appendix A, she has a keen interest in ensuring both
that §2 remains within constitutional bounds and that
the Court issues clear guidance about its proper
application in circumstances like these. Such guidance
will not only help the people tasked with the
administration of elections to know how to carry out
their responsibilities, it will also reduce the likelihood
that federal district courts will rely on ambiguity in
this Court’s caselaw to intrude improperly into States’
efforts to run their elections as they see fit.
As with the Voting Rights Act provisions at issue
in Shelby County v. Holder, an interpretation of §2
3
that effectively expands Congress’s Fourteenth and
Fifteenth Amendment enforcement authorities would
lead to a “drastic departure from basic principles of
federalism.” 570 U.S. 529, 535 (2013). To avoid
hampering the States’ ability to enforce nondiscriminatory regulations designed to protect the
integrity of their elections, this Court should reverse
the Ninth Circuit and interpret §2 consistently with
constitutional limits.
STATEMENT
Arizona citizens have many ways to exercise the
right to vote. They can vote by mail or they can vote in
person; they can vote on Election Day, or they can vote
early. Pet.App. 406-407. Early voting, Arizona’s “most
popular method of voting,” lasts 27 days. Pet.App.21.
Arizona has also passed laws meant to streamline
and safeguard the integrity of its election processes.
One such law requires individuals voting in person to
do so in the precinct where they reside. Arizona Rev.
Stat. (A.R.S.) §16-122. Unregistered voters may cast a
provisional ballot, which is counted once their address
in the precinct is verified. Pet. 6. Any provisional
ballots cast on Election Day but not later verified are
not counted. Ibid.
In 2016, Arizona passed H.B. 2023, another law
meant to safeguard election integrity. It amended
A.R.S. §16-1005 by limiting the list of people who
could knowingly collect a person’s “voted or unvoted”
early ballot to mail workers, caregivers, family
members, or elections officials. Id. §16-1005(H), (I).
In 2016, the Democratic National Committee
(DNC) filed a lawsuit alleging that these election-
4
integrity regulations violate §2 of the Voting Rights
Act. It alleged that Arizona’s regulations disparately
impact minority populations and inhibit their ability
to vote. After a ten-day trial, the district court found
no §2 violation, and a panel of the Ninth Circuit
affirmed. Pet.9-11. But the en banc Ninth Circuit
reversed, finding that the challenged laws violated
Section 2 by disparately impacting more than a de
minimis number of minority voters. Pet.11.
SUMMARY OF ARGUMENT
The Ninth Circuit’s holding erroneously threatens
election-integrity laws any time there is a more-thande-minimis statistical difference in voter participation
among the races.
I. Under this Court’s governing precedents,
Congress only has the authority to enforce the rights
enshrined in the Fourteenth and Fifteenth
Amendments, not to expand them. But §2 of the
Voting Rights Act, as interpreted by the Ninth Circuit,
requires more of the States than either constitutional
amendment, for it allows anything “more than a de
minimis” statistical disparity to implicate §2,
regardless whether racial minorities have an equal
opportunity to vote. Thus, the Ninth Circuit’s
interpretation of §2 violates the Constitution.
The Ninth Circuit here interpreted §2 in a way that
departs from the statutory text. But rather than
interpreting the text to avoid constitutional problems,
the Ninth Circuit’s interpretation exacerbates them.
This Court should apply standard principles of
constitutional avoidance and interpret §2 in a way
that eliminates the constitutional concerns raised by
5
the Ninth Circuit’s unjustified gloss. Specifically, the
Court should hold that §2 protects only against
purposeful discrimination. And it should recognize
that, because minor burdens on the right to vote
neither abridge nor deny the right itself, an electionintegrity provision that entails only the ordinary
burdens of voting does not implicate §2.
II. Such an interpretation would not only protect
the proper balance between the national government
and the States. It would also ensure that election
officials across the country can administer their
States’ election laws without worrying that
circumstances beyond their control could lead to
liability under the Act. This Court has long cautioned
against “t[ying] the hands of States seeking to assure
that elections are operated equitably and efficiently.”
Burdick v. Takushi, 504 U.S. 428, 433 (1992). Here,
anything less than a clear rule—one that reflects
appropriate constitutional limitations on Congress’s
power—would “tie the hands” of some ten thousand
election officials across the country who are merely
trying to enforce nondiscriminatory election
regulations that protect their elections’ integrity. See
Appendix A.
6
ARGUMENT
I. This Court Should Interpret Section 2
Consistently With The Limitations Of The
Fourteenth And Fifteenth Amendments’
Enforcement Clauses.
Article I, §4 of the Constitution authorizes the
States to set the proper time, place, and manner of
elections. Because of the undisputed importance of the
States’ authority over their elections, this Court
should ensure that §2 of the Voting Rights Act (Act),
which regulates the exercise of that power, is
interpreted to fit within the limits of the Fourteenth
and Fifteenth Amendments’ enforcement clauses.
A. Election laws violate the Fourteenth and
Fifteenth Amendments only when they
deny or abridge the right to vote as a
result of purposeful discrimination.
The Ninth Circuit’s interpretation of §2 violates
the Constitution by allowing courts to invalidate state
election laws that neither (1) purposefully
discriminate on the basis of race nor (2) substantially
burden the Fourteenth Amendment right to vote.
1. Subject to congressional alteration, the
Constitution authorizes state legislatures to set the
“Times, Places and Manner of holding Elections.” U.S.
Const. art. I, §4. This Court has interpreted that
clauses to give state legislators the “right to enact and
execute [election laws] on their own, subject of course
to any injunction in a § 2 action.” Shelby Cnty. v.
Holder, 570 U.S. 529, 544 (2013).
7
But §2 constrains the States only to the extent
Congress had the constitutional authority to enact it.
And Congress’s authority in that regard is limited by
the dictates of the Fourteenth and Fifteenth
Amendments.
As this Court has explained, Congress’s power to
enforce a constitutional right is remedial: it does not
include the right to change or expand “what the right
is.” City of Boerne v. Flores 521 U.S. 507, 519 (2017).
Furthermore, any law purporting to enforce the
Fourteenth and Fifteenth Amendments must show
“congruence and proportionality between the injury to
be prevented or remedied and the means adopted to
that end.” Id. at 520. Prior cases and the history of the
Fourteenth and Fifteenth Amendments leave no
question that Section 2 of the Fifteenth Amendment is
no less “remedial” than Section 5 of the Fourteenth
Amendment, the provision at issue in City of Boerne.
South Carolina v. Katzenbach, 383 U.S. 301, 326
(1966); see also Roger Clegg & Hans A. von Spakovsky,
“Disparate Impact” and Section 2 of the Voting Rights
Act 3 (2014).
2. The text of §1 of the Fifteenth Amendment thus
sets the outer limits of the enforcement provision of
§2, which follows it. The Amendment provides that the
“right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any
state on account of” race or color. This Court has
interpreted this provision to prohibit only “purposeful
discrimination.” City of Mobile v. Bolden, 446 U.S. 55,
63 (1980). In the voting-rights context, the Equal
Protection Clause of the Fourteenth Amendment
likewise prohibits only purposeful discrimination; it
8
does not prohibit laws that only “result[] in a racially
disproportionate impact.” Id. at 70 (quoting Arlington
Heights v. Metrop. Housing Dev. Corp., 429 U.S. 252,
264-265 (1977); see also Bossier I, 520 U.S. at 481-482
(same).
Thus, “whether under the Fourteenth or Fifteenth
Amendment,” litigants claiming that their right to
vote has been denied or abridged are “required to
establish that the State or political subdivision acted
with a discriminatory purpose.” Bossier I, 520 U.S. at
481. Properly understood, then, §2 of the Fifteenth
Amendment and §5 of the Fourteenth Amendment
give Congress “full remedial powers to effectuate the
constitutional prohibition against [purposeful] racial
discrimination in voting,” but nothing further.
Katzenbach, 383 U.S. at 326.
3. Of course, a court must also consider how that
right is denied or abridged. After all, the concept of
“abridgement” “necessarily entails a comparison” with
an objective benchmark, because “[i]t makes no sense
to suggest that a voting practice ‘abridges’ the right to
vote without some baseline with which to compare the
practice.” Reno v. Bossier Parish Sch. Bd., 528 U.S.
320, 334 (2000). “The comparison must be made with
*** what the right to vote ought to be.” Id. at 334.
In that regard, this Court’s voting-rights cases
confirm that minor burdens on the right to vote are
not “denials” or “abridgments” of the right. That is
because the “States have long been held to have broad
powers to determine the conditions under which the
right of suffrage may be exercised, absent of course the
discrimination which the Constitution condemns.”
Lassiter v. Northampton Cnty. Bd. of Elections, 360
9
U.S. 45, 50 (1959) (internal citations omitted).
Consistent with this power, the Court has held that
not every law “burden[ing] *** the right to vote must
be subject to strict scrutiny.” Burdick v. Takushi, 504
U.S. 428, 432 (1992). Instead, “reasonable,
nondiscriminatory” voting regulations can be justified
by “the state’s important regulatory interests.”
Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).
The Court has accordingly recognized that state
legislators may create “comprehensive and sometimes
complex election codes” even though they “inevitably
affect[]—at least in some degree—the individual's
right to vote and his right to associate with others for
political ends.” Ibid. Guided by these understandings,
this Court has historically upheld “generallyapplicable and evenhanded restrictions that protect
the integrity and reliability of the electoral process
itself” even though they inherently impose some
burdens on the right to vote. Id. at 788 n.9.
This means that state election laws can require
“nominal
effort”
from
voters
without
unconstitutionally denying or abridging their right to
vote. Clingman v. Beaver, 544 U.S. 581, 591 (2005).
Only “severe” burdens “beyond the merely
inconvenient,” the “[o]rdinary,” and the “widespread”
deny or abridge the right. Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J.,
concurring).
In Crawford, for example, the Court rejected a
challenge to a state election law after finding that it
failed to “represent a significant increase over the
usual burdens of voting.” 553 U.S. at 198 (controlling
opinion of Stevens, J.). Justice Stevens’ controlling
10
opinion recognized that mere “inconvenience” “does
not qualify as a substantial burden on the right to
vote”: “For most voters who need [voter identification],
the inconvenience of making a trip to the BMV,
gathering the required documents, and posing for a
photograph” was only a minor burden. Ibid. Likewise,
burdens “arising from life’s vagaries *** are neither so
serious nor so frequent” as to raise any constitutional
questions to a state election law. Id. at 197.
B. The Ninth Circuit’s interpretation of
Section 2, which allows courts to enjoin
even race-neutral state election laws if
they result in “more than a de minimis”
statistical disparity, is unconstitutional.
When the Ninth Circuit below interpreted §2, it
ignored the constitutional limits on Congress’s power
and usurped from the States their “broad powers to
determine the conditions under which the right of
suffrage may be exercised, absent *** the
discrimination which the Constitution condemns.”
Lassiter v. Northampton Cnty. Bd. of Elections, 360
U.S. 45, 50 (1959) (internal citations omitted). This
Court should interpret §2 to avoid the patent
constitutional problems in the Ninth Circuit’s reading
of the law.
1. When Congress originally passed the Voting
Rights Act of 1965, the statutory text paralleled the
language of the Fifteenth Amendment and prohibited
only purposeful discrimination. City of Mobile v.
Bolden, 446 U.S. 55, 60-62 (1980) (plurality opinion).
In 1982, however, Congress expanded subsection (a) of
§2 to prohibit the States from imposing or applying
voting practices “in a manner which results in a denial
11
or abridgment of the right *** to vote on account of
race or color.” 52 U.S.C. §10301(a). Congress also
added §10301(b) to clarify how, under §2, States can
deny or abridge the right to vote: That provision
requires courts to look at the “totality of
circumstances” to determine whether the “political
processes” are “not equally open to participation by [a
racial group] in that its members have less
opportunity than other members of the electorate to
participate in the electoral process and to elect
representatives of their choice.” 52 U.S.C. §10301(b).
The
1982
amendments
stemmed
from
congressional compromise. The original changes
proposed by the House would have prohibited “all
discriminatory ‘effects’ of voting practices,” yet “[t]his
version met stiff resistance in the Senate.” Miss.
Republican Exec. Comm. v. Brooks, 469 U.S. 1002,
1010 (1984) (Rehnquist, J., dissenting) (citations
omitted) (emphasis added). The Senate feared that
such a law would “lead to requirements that
minorities have proportional representation, or ***
devolve into essentially standardless and ad hoc
judgments.” Ibid. Senator Dole stepped in with a
compromise, which Congress eventually enacted. See
Thornburg v. Gingles, 478 U.S. 30, 84 (1986)
(O’Connor, J., concurring in the judgment). The key to
the compromise was that it prohibited states from
providing unequal opportunity to voters, but it did not
require equality of political outcomes.
2. This Court has recognized that by its terms §2
now imposes a “results test,” i.e., litigants can prove a
violation of §2 by “showing discriminatory effect
alone.” Gingles, 478 U.S. at 35; Chisom v. Roemer, 501
12
U.S. 380, 404 (1991) (same). Because of this, §2 now
“goes beyond the direct prohibitions of the
Constitution itself” to the point that “a violation of §2
is no longer a fortiori a violation of the Constitution.”
Bossier I, 520 U.S. at 482 (internal citations omitted).
For this reason, the plain text of §2 alone raises
significant constitutional questions. But the Court has
never “purport[ed] to assess [the] constitutional
implications” of §2’s text or this Court’s
interpretations of it. Johnson v. De Grandy, 512 U.S.
997, 1028-1029 (1994) (Kennedy, J., concurring);
Chisom, 501 U.S. at 418 (Kennedy, J., dissenting).
The Ninth Circuit’s overly broad interpretation of
§2 presents that question. In resolving the
constitutional issue, this Court should recall that “it is
the duty of federal courts to construe a statute in order
to save it from constitutional infirmities.” Morrison v.
Olson, 487 U.S. 654, 682 (1988). And the Court should
hold that the substantial federalism costs of the Act
require that it be construed in light of the limits of the
Fourteenth and Fifteenth Amendments’ Enforcement
Clauses. Lopez v. Monterey Cnty., 525 U.S. 266, 282
(1999); see also City of Rome v. United States, 446 U.S.
156, 207 (1980) (Rehnquist, J., dissenting) (failing to
properly construe the Voting Rights Act is a “total
abdication” of the Court’s authority to “decid[e]
challenges to the exercise of power” by Congress).
Moreover, because Congress passed the Act as an
exercise of its enforcement power, this Court’s
interpretation should ensure “congruence and
proportionality between the injury to be prevented or
remedied and the means adopted to that end.” City of
Boerne, 521 U.S. at 520. Because the Fourteenth and
13
Fifteenth Amendments give Congress only remedial
powers to prohibit purposeful discrimination in voting
legislation, §2 should be interpreted to extend only far
enough to respond proportionately to the evils of
purposeful discrimination. See, e.g., NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490, 500 (1979).
3. Rather than avoid the constitutional problems
presented by §2, the Ninth Circuit’s interpretation
exacerbated them. Its reading of the law would allow
courts to enjoin election procedures whenever a
litigant could show that those procedures affect “more
than a de minimis number of minority voters,” JA 619620, 661-662, even—in some cases—if the law did not
cause a substantial disparate impact. See JA 659, 671
(asking whether a disparity is “caused by or linked to
social or historical conditions”) (internal punctuation
omitted). The Ninth Circuit’s reading would also do so
regardless of (1) whether States enacted the
challenged
statutes
because
of
purposeful
discrimination, see Pet. Br. 45-49, or (2) whether they
impose anything more than the ordinary burdens of
voting. JA 722-723 (Bybee, J., dissenting) (stressing
that the regulations challenged here were ordinary
time, place, and manner restrictions necessary for
election integrity). As addressed in Section I.A,
Congress lacks the power to enact such a statute.
14
C. This Court should interpret Section 2 so
that it goes no further than the limits of
the Fourteenth and Fifteenth
Amendments by holding that it prohibits
only those state election laws motivated
by purposeful discrimination.
Consistent with well-established principles of
constitutional avoidance, this Court should interpret
§2 in a way that matches the rights enshrined in the
Fourteenth and Fifteenth Amendments. See, e.g.,
NLRB v. Catholic Bishop of Chicago, 440 U.S. at 500.
Moreover, the Court should hold, as it has
recognized in prior voting-rights cases, that minor
inconveniences such as the ordinary burdens of voting,
which are inevitable in any election regime, do not
abridge or deny the right to vote. Crawford, 553 U.S.
at 198 (controlling opinion of Stevens, J.); Clingman,
544 U.S. at 591; Burdick, 504 U.S. at 432; Anderson,
460 U.S. at 788. Because a threshold inquiry in §2
cases is whether a state election law has denied or
abridged the right to vote, 52 U.S.C. §10301(a),
election-integrity statutes that impose only the
ordinary burdens of voting should never implicate §2.
Finally, the Court’s interpretation should
recognize that Congress lacked the constitutional
authority to enact a Voting Rights Act that would
invalidate state election laws that are not tainted by
purposeful discrimination. See, e.g., Bossier I, 520 U.S.
at 481-482; City of Mobile, 446 U.S. at 63, 70.
Put simply, for §2 to survive constitutional
scrutiny, this Court should interpret it to prohibit only
those state election statutes that are (1) tainted by
15
purposeful discrimination and (2) that deny or abridge
the right to vote by imposing more than the ordinary
burdens of voting. Only by constraining §2 to the
constitutional limits of Congress’s enforcement power
will the States be able to exercise their own “broad
powers to determine the conditions under which the
right of suffrage may be exercised, absent *** the
discrimination which the Constitution condemns.”
Lassiter v. Northampton Cnty. Bd. of Elections, 360
U.S. 45, 50 (1959) (internal citations omitted).
II. State Officials Need A Clear Rule To Avoid
Confusion And Ensure The Efficient
Administration Of Elections.
To state legislators and the officials they task with
overseeing elections, it is impossible to overstate the
importance of a bright-line rule interpreting §2 of the
Act within constitutional limits.
1. Article I, §4 of the Constitution reflects the
understanding that the “fair and honest”
administration of elections requires their “substantial
regulation.” Storer v. Brown, 415 U.S. 724, 730 (1974).
This Court has therefore interpreted the Constitution
to allow state “government[s] [to] play an active role
in structuring elections.” Burdick, 504 U.S. at 433.
Consistent with that understanding, this Court’s
previous interpretations of §2 have emphasized that
“the State’s interest in maintaining an electoral
system *** is a legitimate factor to be considered by
courts among the ‘totality of circumstances’ in
determining whether a § 2 violation has occurred.”
Houston Lawyers’ Ass’n v. Attorney Gen. of Texas, 501
U.S. 419, 426 (1991). To maintain such a system, state
election codes may, as this Court has recognized, be
16
“comprehensive and sometimes complex.” Anderson,
460 U.S. at 788 (cleaned up).
And the Court has recognized that a State’s
election laws may serve many purposes. For example,
states can properly use their election laws “to prevent
the clogging of [their] election machinery, avoid voter
confusion, and assure that the winner is the choice of
a majority, or at least a strong plurality, of those
voting.” Bullock v. Carter, 405 U.S. 134, 145 (1972).
And they can introduce schemes that “govern[] the
registration and qualifications of voters, the selection
and eligibility of candidates, or the voting process
itself.” Anderson, 460 U.S. at 788. They can also
impose “safeguards” to prevent “fraud and corrupt
practices.” Smiley v. Holm, 285 U.S. 355, 366 (1932).
“[E]xperience shows” that such regulations are
“necessary.” Ibid.
By contrast, the Ninth Circuit’s reading of §2
would threaten virtually any voting regulation, no
matter how beneficial to democratic self-government,
that indirectly increases the burdens of voting slightly
more for one race than another. JA 659, 671. That
ruling would place any number of these electionintegrity schemes at risk at any time. Shelby Cnty.,
570 U.S. at 537 (“Section 2 is permanent, applies
nationwide,” and “[b]oth the Federal government and
individuals have sued to enforce” it.).
2. The many officials charged with creating and
implementing state election regulations cannot be
expected to operate under that uncertainty. As
Appendix A shows, there are roughly ten thousand
state and local officials nationwide who have
undertaken those responsibilities within their
17
respective states, not to mention the 7,383 legislators
who ultimately must decide which regulations to
adopt. See Appendix A.
For these legislators and election officials, the everpresent threat of a §2 lawsuit—regardless whether an
election provision is discriminatory—will hinder their
ability to adopt and apply legitimate local election
laws. States and state officials thus need this Court’s
guidance so that they may continue to regulate their
own elections appropriately. Were this Court to affirm
the Ninth Circuit—or reverse it without providing
clear instruction on the scope of §2—it would “tie the
hands of States” and state officials “seeking to assure
that elections are operated equitably and efficiently,”
by creating confusion about which race-neutral
election laws are at risk of being enjoined. Burdick,
504 U.S. at 433.
Further, failing to properly address the scope of §2
in this case would leave district courts around the
country unsure of how to apply §2 when those cases
inevitably come before them. Without clear guidance
about what §2 prohibits, many district courts will feel
empowered to second-guess state election regulations,
a sphere that, as mentioned, the Constitution largely
leaves to the States.
To prevent these untoward results, and to ensure
that state election officials can keep regulating state
elections “absent *** the discrimination which the
Constitution condemns,” Lassiter v. Northampton
Cnty. Bd. of Elections, 360 U.S. 45, 50 (1959), this
Court should clarify what §2 prohibits by interpreting
that provision consistently with the clear limitations
of the Fourteenth and Fifteenth Amendments.
18
CONCLUSION
Election officials across the country are tasked
with ensuring open, safe, and secure elections. The
Ninth Circuit’s interpretation of §2 departs from the
text of the statute. Rather than saving the statute—
which would be the only permissible reason to depart
from the text—the Ninth Circuit increased the
problems with it, at the expense of election officials
who want nothing more than to safely and efficiently
implement their state’s race-neutral election laws.
Only by interpreting §2 with an understanding of the
limits of Congress’s authority will this Court be able
to provide the clarity needed to guide state election
officials as they secure and oversee their state
elections.
Respectfully submitted,
GENE C. SCHAERR
Counsel of Record
ERIK S. JAFFE
HANNAH C. SMITH
KATHRYN E. TARBERT
JOSHUA J. PRINCE
SCHAERR|JAFFE LLP
1717 K St. NW, Suite 900
Washington, DC 20006
(202) 787-1060
gschaerr@schaerr-jaffe.com
December 7, 2020
APPENDIX
APPENDIX
TABLE OF CONTENTS
Page
APPENDIX A – STATE ELECTION OFFICIALS
AND LEGISLATORS ........................................... 1a
Legislators1
140
60
90
135
120
100
187
62
160
236
76
105
177
150
150
State
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
State
Officials2
164
~1005
156
268
~4810
~311
N/A
1113
5315
16516
2218
N/A
1019
1520
1122
County/Local
Officials3
N/A
30
307
3009
58
64
51712
614
67
~31817
4
44
102
~36821
99
APPENDIX A
STATE ELECTION OFFICIALS AND LEGISLATORS
~156
~190
135
461
~226
~167
~704
79
280
~719
102
~149
289
~533
260
Total
1a
Legislators1
165
138
144
186
188
200
148
201
174
197
150
49
63
424
120
112
213
State
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
State
Officials2
N/A
923
725
627
2029
131
632
N/A
734
736
1037
638
1139
1541
943
~445
647
County/Local
Officials3
105
48024
32026
~1628
12330
N/A
1,60333
87
41035
114
56
93
3540
32442
2144
13246
24848
~270
627
471
~208
331
~201
1,757
~288
591
318
216
148
109
763
150
~248
467
Total
2a
Legislators1
170
141
132
149
90
253
113
170
105
132
181
104
180
140
147
134
132
State
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
State
Officials2
649
551
2152
654
1756
957
1559
1061
763
864
666
468
669
570
N/A
772
673
County/Local
Officials3
50050
53
35253
~23155
36
6758
3960
~36862
66
47565
25467
29
14
39971
39
55
72
676
199
505
~386
143
329
167
~548
178
615
441
137
200
544
~186
196
210
Total
3a
Legislators1
90
7,383
State
Wyoming
Totals
State
Officials2
174
~758
County/Local
Officials3
23
~9,246
114
~17,387
Total
4a
5a
1 Number of Legislators and Length of Terms in Years, Nat’l
Conference
of
State
Legislatures
(Aug.
9,
2019),
https://www.ncsl.org/research/about-state-legislatures/numberof-legislators-and-length-of-terms.aspx.
2 In some instances, the lack of readily available data has
made necessary either an estimate, marked with a “~,” or, where
data was truly unavailable, an “N/A.”
3 Unless otherwise noted, county/local data comes from
Election Admin. at State and Local Levels, Nat’l Conference of
State
Legislators
(Feb.
3,
2020),
https://www.ncsl.org/research/elections-and-campaigns/electionadministration-at-state-and-local-levels.aspx#table2 (calculated
using Local Election Administration Structure Map and Table 2:
States with Multiple Election Officials and multiplying by the
number of counties with the number of local administrators
indicated in the source).
See Office Salary Information, Ala. Sec’y of State,
https://www.sos.alabama.gov/sos-office/office-salary-information
(last visited Dec. 5, 2020) (calculated by adding the positions
under the Elections Division with relevant positions in the
Executive Division).
4
5
See
Employee
Directory,
State
of
Alaska,
https://www.alaska.gov/whitepages/ (last visited Dec. 5, 2020)
(calculated by searching “Election” in Job Title section and
selecting “Office of Governor” for agency).
See
Sec’y
of
State,
AZ
Direct,
https://azdirect.az.gov/secretary-state (last visited Dec. 5, 2020)
(4 pertinent team members); Our Team, Citizens Clean Elections
Commission, https://www.azcleanelections.gov/our-team (last
visited Dec. 5, 2020) (11 team members).
6
7 See County Election Officials Contact Information, Ariz.
Sec’y of State, https://azsos.gov/county-election-info (last visited
Dec. 5, 2020) (2 officials each in 15 counties).
See About Us, Ark. State Bd. of Election Comm’rs.,
https://www.arkansas.gov/sbec/about-us/ (last visited Dec. 5,
8
6a
2020) (14 commissioners/staff); Elections Division: People,
Arkansas.gov, https://portal.arkansas.gov/agency/secretary-ofstate/elections-division//employees/ (last visited Dec. 5, 2020) (12
employees).
See Election Commissioners, Ark. State Bd. of Election
Comm’rs., https://www.arkansas.gov/sbec/election-commissioner
(last visited Dec. 5, 2020) (each of Arkansas’ 75 counties has an
election board (x3) and a county clerk).
9
10 See Organization & Responsibilities, Cal. Fair Political
Practices
Comm.,
https://www.fppc.ca.gov/aboutfppc/organization-and-responsibilities.html (last visited Dec. 5,
2020) (9 members/staff); Language Accessibility Advisory
Committee,
Cal.
Sec’y
of
State,
https://www.sos.ca.gov/elections/laac/members (last visited Dec.
5, 2020) (18 members); State Entities, Cal. Online Directory,
https://cold.govops.ca.gov/StateEntity (last visited Dec. 5, 2020)
(look under Secretary of State Administrative Division (4
relevant employees) and Elections Division (3 relevant contacts));
Voting Accessibility Advisory Committee, Cal. Sec’y of State,
https://www.sos.ca.gov/elections/vaac (last visited Dec. 5, 2020) (9
members); Voting Modernization Bd., Cal. Sec’y of State,
https://www.sos.ca.gov/elections/laac/members (last visited Dec.
5, 2020) (5 members).
See Colo. Legislative Council Staff, Directory of State
Government
25
(2020),
https://leg.colorado.gov/sites/default/files/directory_of_state_gov
ernment_final.pdf (Secretary of State, Deputy Secretary of State,
Elections Director).
11
12 See Find Your Town Clerk, Registrar of Voters and Elected
officials,
Off.
of
Sec’y
of
State,
https://portal.ct.gov/SOTS/Election-Services/Find-Your-TownClerk-Registrar-and-Elected-Officials/Find-Your-Town-ClerkRegistrar-of-Voters-and-Elected-Officials (last visited Dec. 5.,
2020) (339-member Registrar of Voters and 178 Town Clerks).
About Agency, Off. of the State Election Comm’r,
https://elections.delaware.gov/aboutagency.shtml#board
(last
visited Dec. 5, 2020).
13
7a
14 Ibid.
15 See 2020–2021 State Positions Detail, Transparency Fla.,
http://transparencyflorida.gov/Positions/Positions_Detail.aspx?F
Y=21&BE=45100200&SC=F&Print=Y (last visited Dec. 5, 2020)
(52 positions plus the Secretary of State).
16
County Election Liaisons, Ga. Sec’y of State,
https://sos.ga.gov/Elections/CountyContacts/CountyLiaisonDispl
ay.aspx (last visited Dec. 5, 2020) (1 liaison each for 159 counties);
State
Election
Board,
Ga.
Sec’y
of
State,
https://sos.ga.gov/index.php/elections/state_election_board (last
visited Dec. 5, 2020) (5 members); State of Georgia Online
Directory,
Team
Ga.
Directory,
http://directory.doas.ga.gov/Home/Index (last visited Dec. 5,
2020) (1 elections director).
17 See Linda Ford, Local Bd. Structure and Elections Admin.
10
(2011),
http://www.accg.org/library/2011_llc_elections_management.pdf
(estimate calculated by assuming at least 2 officials in each of
Georgia’s 159 counties).
18 Pete Gayatinea, Directory of State, County and Federal
Officials
23
(2019),
https://lrb.hawaii.gov/wpcontent/uploads/dir_2019-12.pdf (Chief Election Officer, 9member Elections Commission, and 12-member Board of
Registration).
Board Members, Ill. State Bd. of Elections,
https://www.elections.il.gov/AboutTheBoard/BoardMembers.asp
x?MID=tM0nmb%2bWN6o%3d&T=637422039202130824 (last
visited Dec. 5, 2020) (8-member Board of Elections); Off. of Exec.
Dir.,
Ill.
State
Bd.
of
Elections,
https://www.elections.il.gov/AboutTheBoard/DivExecutiveDirect
or.aspx?MID=vNkncI7qfKU%3d&T=637427727980631973 (last
visited Dec. 5, 2020) (Executive Director and Assistant Executive
Director).
19
20
Election
Commission,
Ind.
Sec’y
of
State,
https://www.in.gov/sos/elections/2404.htm (last visited Dec. 5,
2020) (4 members); IED Staff, Ind. Sec’y of State,
8a
https://www.in.gov/sos/elections/2366.htm (last visited Dec. 5,
2020) (11 employees).
Ass’n. of Ind. Cntys., There When You Need It: County
Government
3,
5,
https://www.indianacounties.org/egov/documents/1251296396_4
85260.pdf (last visited Dec. 5, 2020) (“Counties have 3
commissioners,” and a clerk of circuit court who serves “as an exofficio member” of the “county election board.”).
21
22 Governing Board Members, Iowa Ethics & Campaign
Disclosure Bd., https://ethics.iowa.gov/about/governing-boardmembers (last visited Dec. 5, 2020) (6 members); Voter
Registration
Comm.,
Iowa
Sec’y
of
State,
https://sos.iowa.gov/elections/VRC/VRC.html (last visited Dec. 5,
2020) (4 members plus Secretary of State).
About Us: State Board of Elections, Ky. State Bd. of
Elections,
https://elect.ky.gov/About-Us/Pages/State-Board-ofElections.aspx (last visited Dec. 5, 2020) (“The State Board of
Elections consists of the Secretary of State … and eight members
appointed by the governor.”).
23
24 County Boards of Election, Ky. State Bd. of Elections,
https://elect.ky.gov/About-Us/Pages/County-Boards-ofElections.aspx (last visited Dec. 5, 2020) (click link to “list of
county board members” showing that there are 4-member boards
in each of 120 counties).
Election Officials Duties, La. Sec’y of State,
https://www.sos.la.gov/ElectionsAndVoting/PublishedDocument
s/ElectionOfficialsDuties.pdf (last visited Dec. 5, 2020) (7member State Board of Election Supervisors).
25
26 Ibid. (5 election officials in each of 64 parishes).
27 About Us, Me. Comm. On Governmental Ethics & Election
Practices, https://www.maine.gov/ethics/about (last visited Dec.
5, 2020) (5-member “Commission on Governmental and Election
Practices” plus Secretary of State).
28 Each of Maine’s 16 counties has at least one official. See
supra n.2.
9a
29
About
SBE,
Md.
State
Bd.
of
Elections,
https://elections.maryland.gov/about/index.html (last visited
Dec. 5, 2020) (5-member State Board of Elections); State Bd. of
Elections
Directory,
Md.
State
of
Elections,
https://elections.maryland.gov/about/staff.html (last visited Dec.
5, 2020) (15 relevant employees).
Local Boards of Election, Md. Manual On-Line,
https://msa.maryland.gov/msa/mdmanual/41electp/html/local.ht
ml (last visited Dec. 5, 2020) (5 members each in 23 county boards
of election, with 8-member board of election in Prince George’s
County).
30
31 Contact Information, Sec’y of Commonwealth of Mass.,
https://www.sec.state.ma.us/seccon.htm (last visited Dec. 5,
2020) (Secretary of the Commonwealth).
See Mich. Bureau of Elections, Structure of Michigan’s
Election
System
4
(2019),
https://www.michigan.gov/documents/sos/I_Structure_of_MI_El
ections_System_265982_7.pdf (Secretary of State, 4-member
Board of Canvassers, and State Elections Director).
32
33 See id. at 1 (“Michigan’s election system is administered by
1603 county and local election officials.”).
Staff
Directory,
Miss.
Sec’y
of
State,
https://www.sos.ms.gov/About/Pages/Staff-Directory.aspx (last
visited Dec. 5, 2020) (Secretary of State and 6-member Elections
Division).
34
35
See County Election, Miss. Sec’y of State,
https://www.sos.ms.gov/Elections-Voting/Pages/CountyElection-Info.aspx (last visited Dec. 5, 2020) (5-member boards in
each of 82 counties).
36 See Missouri Personnel: Office of Secretary of State, Mo.
Official
Manual
918,
https://www.sos.mo.gov/cmsimages/bluebook/20192020/10_Personnel.pdf#page=2 (last visited Dec. 5, 2020)
(calculated by adding employees with “elections” in their titles).
37 See Office of the Secretary of State, Mont. Agency Directory,
https://directory.mt.gov/govt/state-dir/agency/secstate
(last
10a
visited Dec. 5, 2020) (calculated by adding the Secretary of State,
Deputy Secretary of State, Elections Director plus seven
employees in the “Elections and Government Services” section).
Elections
Division,
Neb.
Sec’y
of
State,
https://sos.nebraska.gov/elections/elections-division (last visited
Dec. 5, 2020) (Secretary of State and a 5-member “Elections
Team”).
38
39 Advisory Committee on Participatory Democracy, Nev.
Sec’y
of
State,
https://www.nvsos.gov/sos/elections/voters/advisory-committeeon-participatory-democracy (last visited Dec. 5, 2020) (9
members);
Executive
Staff,
Nev.
Sec’y
of
State,
https://www.nvsos.gov/sos/sos-information/office-facts/executivestaff (last visited Dec. 5, 2020) (Deputy Secretary of State for
Elections and Deputy for Elections).
County Clerk Contact Information, Nev. Sec’y of State,
https://www.nvsos.gov/sos/elections/voters/county-clerk-contactinformation (last visited Dec. 5, 2020) (one county clerk in each
of 16 counties, plus an additional clerk for Carson City); City
Clerk
Contact
Information,
Nev.
Sec’y
of
State,
https://www.nvsos.gov/sos/elections/voters/city-clerk-contactinformation (last visited Dec. 5, 2020) (18 city clerks).
40
41 See Ballot Law Commission, N.H. Dep’t of State,
https://sos.nh.gov/elections/elections/ballot-law-commission/
(last visited Dec. 5, 2020) (10-member commission plus Secretary
of State).
42 See New Hampshire Political Districts (Voting Wards), NH
Geodata
Portal,
https://www.nhgeodata.unh.edu/datasets/67b478be56d14788812
2de1a41fa81a0_5/data?page=33
(estimate
calculated
by
assuming 1 official in each of 324 wards).
43 See About ELEC, N.J. Election Law Enf’t Comm.,
https://www.elec.nj.gov/aboutelec.htm (last visited Dec. 5, 2020)
(9 relevant employees).
See County Election Officials, N.J. Dep’t of State,
https://www.state.nj.us/state/elections/vote-county-election44
11a
officials.shtml#collapse1 (last visited Dec. 5, 2020) (estimate
calculated by assuming at least 1 official in each of 21 counties).
See
Contact
Us,
N.M.
Sec’y
of
State,
https://www.sos.state.nm.us/contact-us/ (last visited Dec. 5,
2020) (Secretary of State, Deputy Secretary of State, Elections
Director, and Deputy Elections Director).
45
46 See Election Handbook Art. 2 § 1-2-12, N.M. Sec’y of State
(2019), https://www.sos.state.nm.us/voting-and-elections/voterinformation-portal/election-resources/# (open Election Handbook
PDF) (There are 33 county election boards, and each “election
board shall consist of (1) a presiding judge; (2) two election
judges; and (3) election clerks who are appointed to assist.”).
47 See About the New York State Board of Elections, N.Y. Bd.
of Elections, https://www.elections.ny.gov/AboutSBOE.html (last
visited Dec. 5, 2020) (4 commissioners and two executive
directors of New York State Board of Elections).
48 See County Boards of Elections, N.Y. State Bd. of Elections
(Oct.
5,
2020),
https://www.elections.ny.gov/NYSBOE/Counties/CountyBoardR
oster10052020.pdf (estimate calculated based on 4 officials in
each of 62 counties, not counting for vacancies or deviations from
the 4-official standard).
About,
N.C.
State
Bd.
of
Elections,
https://www.ncsbe.gov/about (last visited Dec. 5, 2020).
49
50 County Boards of Election, N.C. State Bd. of Elections,
https://www.ncsbe.gov/about-elections/county-boards-elections
(last visited Dec. 5, 2020) (“Each of North Carolina’s 100 counties
has a county board of elections with five members.”).
51 See Staff Organizational Chart, N.D. Sec’y of State (2020),
http://sos.nd.gov/files/uploaded_documents/organizational-chart20201102.pdf (estimate calculated by adding the Secretary of
State, the Deputy Secretary of State, the Director; and two
members in the Elections Unit).
52
See State of Ohio Phone Search, Ohio.gov,
https://dasapps.ohio.gov/phonedir/ (search Secretary of State as
agency and look for election under the department) (last visited
12a
Dec. 5, 2020) (estimate calculated by typing the word “elections”
in the Department section, resulting in 20 election employees,
and then adding the Secretary of State).
See County Boards of Elections Directory, Ohio Sec’y of
State,
https://www.sos.state.oh.us/elections/electionsofficials/county-boards-of-elections-directory/ (last visited Dec. 5,
2020) (“Each of Ohio’s 88 counties has … [a] four-person board.”).
53
54 See State Election Board Secretary and Members, Okla.
State
Election
Bd.,
https://www.ok.gov/elections/About_Us/Secretary_and_Board/in
dex.html (last visited Dec. 5, 2020) (Secretary of State Election
Board, 3 board members, 2 alternates).
See County Election Board Information, State of Okla.,
https://www.ok.gov/elections/documents/CEB_Physical%20Addr
esses_10142020.pdf (last visited Dec. 5, 2020) (estimate
calculated by assuming 3 members in each of 77 county boards of
election).
55
56 Secretary of State Employees Dedication, Or. Blue Book,
https://sos.oregon.gov/blue-book/Pages/about-dedication.aspx
(Secretary of State and 16 Elections Division staff).
See
Directory,
Pa.
Dep’t
of
State,
https://www.dgs.pa.gov/About/Documents/Commonwealth%20Di
rectory%20Files/Department%20of%20State.doc (last visited
Dec. 5, 2020) (Secretary of State and 8 elections employees).
57
58
See Contact Your Election Officials, Votes PA,
https://www.votespa.com/Resources/Pages/Contact-YourElection-Officials.aspx (last visited Dec. 5, 2020) (estimate
calculated by assuming at least one election official in each of
Pennsylvania’s 67 counties).
See
About
Us,
R.I.
Bd.
of
Elections,
https://elections.ri.gov/about/index.php#staff-directory
(last
visited Dec. 5, 2020) (9-member Board of Elections and 5 election
staff members); Elections in Rhode Island, R.I. Dep’t of State,
https://www.sos.ri.gov/about-divisions (last visited Dec. 5, 2020)
(Secretary of State).
59
13a
60 See Local Boards of Canvassers, R.I. Dep’t of State,
https://vote.sos.ri.gov/Elections/LocalBoards (last visited Dec. 5,
2020) (estimate calculated based on 39 Local Boards of
Canvassers with an assumption that each had at least 1
member).
About
the
SEC,
S.C.
Election
Comm.,
https://www.scvotes.gov/about-sec (last visited Dec. 5, 2020) (5
members of the election commission and a staff of 5).
61
62 See S.C. Code Ann. § 7-5-10(a)(1), (6) (1976) (requiring
between 5 and 9 members in each of 46 counties; estimation
calculated by averaging 7 in each county, plus 1 hired director
per board).
State Board of Elections, S.D. Sec’y of State,
https://sdsos.gov/about-the-office/board-of-elections/default.aspx
(last visited Dec. 5, 2020).
63
64 See State Election Commission, Tenn. Sec’y of State,
https://sos.tn.gov/products/elections/state-election-commission
(last visited Dec. 5, 2020) (Secretary of State and seven-member
commission).
65 Ibid. (5-member boards in each of Tennessee’s 95 counties).
66
Secretary
of
State,
Tex.
State
Directory,
https://www.txdirectory.com/online/office/?id=6 (last visited Dec.
5, 2020) (Secretary of State, Deputy Secretary of State, and 4
employees).
See
Election
Duties,
Tex.
Sec’y
of
State,
https://www.sos.state.tx.us/elections/voter/county.shtml
(last
visited Dec. 5, 2020) (one election clerk each in 254 counties).
67
68
See
Staff,
Utah
Lieutenant
Governor,
https://ltgovernor.utah.gov/staff-list/ (last visited Dec. 5, 2020)
(Lieutenant Governor and 3 election employees).
See About Elections Division, Vt. Sec’y of State,
https://sos.vermont.gov/elections/about/ (last visited Dec. 5, 2020)
(Secretary of State and 4 employees).
69
70
About
Us,
Va.
Dep’t
of
Elections,
https://www.elections.virginia.gov/contact-us/about.html
(last
14a
visited Dec. 5, 2020) (3-member Board of Elections, plus
Commissioner and Deputy Commissioner).
Local Voter Registration Office, Va. Dep’t of Elections,
https://vote.elections.virginia.gov/VoterInformation/PublicConta
ctLookup (last visited Dec. 5, 2020) (3 members in each of 133
county/city election boards).
71
72
Office
Directory,
W.
Va.
Sec’y
of
State,
https://sos.wv.gov/about/Pages/Office-Directory.aspx (last visited
Dec. 5, 2020) (Secretary of State and 6 Elections Division
employees).
73 About Us: Commission Members, Wis. Elections Comm.,
https://elections.wi.gov/about/members (last visited Dec. 5, 2020)
(6-member Elections Commission).
74
Meet the Executive Team, Wyo. Sec’y of State,
https://sos.wyo.gov/AboutUs/AboutExecutiveTeam.aspx
(last
visited Dec. 5, 2020) (Secretary of State and at least one
employee).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.