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

Supreme Court briefDec 7, 2020

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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.

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