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

Nos. 19-1257, 19-1258

IN THE

Supreme Court of the United States

_________

MARK BRNOVICH, IN HIS OFFICIAL CAPACITY AS ARIZONA

ATTORNEY GENERAL, ET AL.,

Petitioners,

v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

Respondents.

________

ARIZONA REPUBLICAN PARTY, ET AL.,

Petitioners,

v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

Respondents.

________

On Writs of Certiorari to the

United States Court of Appeals for the Ninth Circuit

________

BRIEF OF RESPONDENT

ARIZONA SECRETARY OF STATE KATIE HOBBS

________

JESSICA RING AMUNSON

Counsel of Record

SAM HIRSCH

TASSITY S. JOHNSON

NOAH B. BOKAT-LINDELL

ELIZABETH B. DEUTSCH

JONATHAN A. LANGLINAIS

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

jamunson@jenner.com

i

QUESTIONS PRESENTED

The court below held that Arizona’s policy of refusing

to count ballots, even for statewide offices, if they were

cast by voters in precincts where the voters did not

reside resulted in a denial or abridgement of the right to

vote on account of race or language-minority status in

violation of Section 2 of the Voting Rights Act. The court

likewise held that an Arizona statute that criminalizes

non-fraudulent collection of another person’s early ballot

not only violated Section 2’s results test, but also was

intentionally discriminatory, in violation of both Section

2 and the Fifteenth Amendment. The questions

presented are:

1. Did the court below correctly interpret Section

2’s plain text to find that Arizona’s out-of-precinct

policy and ballot-collection statute violate Section

2?

2. Did the court below correctly find that the ballotcollection

statute

was

enacted

with

discriminatory intent in violation of Section 2 and

the Fifteenth Amendment?

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ......................................... iv

INTRODUCTION .............................................................. 1

STATEMENT ..................................................................... 3

A. Arizona’s Election-Administration

Structure................................................................... 3

B. Arizona’s Policy Regarding Provisional

Ballots Cast “Out of Precinct.” .............................. 5

C. Arizona’s Ballot-Collection Statute, H.B.

2023. ........................................................................... 8

SUMMARY OF ARGUMENT ....................................... 12

ARGUMENT ..................................................................... 16

I. Section 2 Prohibits Any Voting Practice that

Results in a Denial of the Right to Vote on

Account of Race. .......................................................... 16

A. Section 2’s Results Test Follows the Plain

Text.......................................................................... 16

B. Petitioners Depart from Section 2’s Text

by Inventing Restrictions. ................................... 25

C. Properly Read, Section 2 Raises No

Constitutional Issues. ........................................... 33

II. No Petitioner Has Standing to Appeal the

Decision on the OOP Policy, Which the Court

Below Correctly Held Violates Section 2. ............... 36

A. Petitioners Lack Standing to Appeal the

Decision Below on the OOP Policy. .................... 36

iii

B. The OOP Policy Violates Section 2. .................... 39

III. The Court Below Correctly Held that

Arizona’s Statute Criminalizing NonFraudulent Ballot Collection Violates Section

2 and the Fifteenth Amendment. .............................. 44

A. H.B. 2023 Violates Section 2’s Results

Test. ......................................................................... 44

B. H.B. 2023 Violates Section 2’s Intent Test

and the Fifteenth Amendment. ........................... 47

CONCLUSION ................................................................. 51

iv

TABLE OF AUTHORITIES

CASES

Allen v. State Board of Elections, 393 U.S.

544 (1969), abrogation recognized by

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017)............... 24

Anderson v. City of Bessemer City, 470 U.S.

564 (1985) ........................................................... 50, 51

Arizona v. Inter Tribal Council of Arizona,

Inc., 570 U.S. 1 (2013) ............................................. 35

Arizona Libertarian Party, Inc. v. Bayless,

351 F.3d 1277 (9th Cir. 2003) ................................... 4

Bostock v. Clayton County, 140 S. Ct. 1731

(2020) .................................................................. 18, 19

Burrage v. United States, 571 U.S. 204

(2014) .................................................................. 19, 21

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

City of Boerne v. Flores, 521 U.S. 507 (1997),

superseded by statute as stated in

Burwell v. Hobby Lobby Stores, Inc., 573

U.S. 682 (2014) ................................................... 34, 35

City of Rome v. United States, 446 U.S. 156

(1980), superseded by statute as stated in

Northwest Austin Municipal Utility

District No. One v. Holder, 557 U.S. 193

(2009) ............................................................ 24, 33, 35

Comcast Corp. v. National Ass’n of African

American-Owned Media, 140 S. Ct. 1009

(2020) ...................................................................18-19

v

Cooper v. Harris, 137 S. Ct. 1455 (2017) .................... 50

Crawford v. Marion County Election

Board, 553 U.S. 181 (2008)..................................... 49

District of Columbia v. Wesby, 138 S. Ct.

577 (2018) ................................................................. 31

Easley v. Cromartie, 532 U.S. 234 (2001).................. 50

Food Marketing Institute v. Argus Leader

Media, 139 S. Ct. 2356 (2019) ................................ 16

Gaston County v. United States, 395 U.S.

285 (1969) ................................................................. 27

Gonzalez v. Arizona, 677 F.3d 383 (9th Cir.

2012), aff’d sub nom. Arizona v. Inter

Tribal Council of Arizona, Inc., 570 U.S.

1 (2013) ....................................................................... 4

Gray v. Sanders, 372 U.S. 368 (1963) ......................... 41

Holder v. Hall, 512 U.S. 874 (1994) .......... 18, 26, 28, 41

Hollingsworth v. Perry, 570 U.S. 693 (2013) ............ 38

Husted v. A. Philip Randolph Institute, 138

S. Ct. 1833 (2018)..................................................... 20

Johnson v. De Grandy, 512 U.S. 997

(1994) ............................................................ 23, 25, 29

Jones v. Governor of Florida, 975 F.3d 1016

(11th Cir. 2020) (en banc) ....................................... 19

Karcher v. May, 484 U.S. 72 (1987) ............................ 38

League of United Latin American Citizens

v. Perry, 548 U.S. 399 (2006) ............... 21, 23, 33, 50

vi

League of Women Voters of North Carolina

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

2014) .......................................................................... 26

Lopez v. Monterey County, 525 U.S. 266

(1999) ........................................................................ 35

McCleskey v. Kemp, 481 U.S. 279 (1987)................... 49

Mi Familia Vota v. Hobbs, 977 F.3d 948 (9th

Cir. 2020) .................................................................... 3

Paroline v. United States, 572 U.S. 434

(2014) ........................................................................ 20

People v. Wood, 741 N.W.2d 574 (Mich. Ct.

App. 2007) ................................................................ 19

Reno v. Bossier Parish School Board, 520

U.S. 471 (1997) ......................................................... 23

Reynolds v. Sims, 377 U.S. 533 (1964) ....................... 41

Rice v. Cayetano, 528 U.S. 495 (2000)........................ 24

Santa Rita Mining Co. v. Department of

Property Valuation, 530 P.2d 360 (Ariz.

1975) .................................................................... 37, 38

Shelby County v. Holder, 570 U.S. 529

(2013) .............................................................. 1, 24, 35

South Carolina v. Katzenbach, 383 U.S. 301

(1966) .................................................................. 27, 35

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1 (1971) ................................ 31

Tennessee v. Lane, 541 U.S. 509 (2004) ..................... 35

vii

Texas Department of Housing &

Community Affairs v. Inclusive

Communities Project, Inc., 135 S. Ct.

2507 (2015) ....................................... 17, 18, 21, 33, 34

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

United States v. Burkholder, 816 F.3d 607

(10th Cir. 2016) ........................................................ 19

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

2016) .......................................................................... 40

Village

of

Arlington

Heights

v.

Metropolitan Housing Development

Corp., 429 U.S. 252 (1977) .................... 12, 32, 48, 49

Virginia House of Delegates v. BethuneHill, 139 S. Ct. 1945 (2019) .................................... 37

Voinovich v. Quilter, 507 U.S. 146 (1993) .................. 20

White v. Regester, 412 U.S. 755 (1973) ................. 22, 25

Wittman v. Personhuballah, 136 S. Ct. 1732

(2016) ........................................................................ 38

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. amend. XV ................................................ 19

52 U.S.C. § 10301(a) ........................ 12, 16, 19, 30, 39, 41

52 U.S.C. § 10301(b)...................13, 17, 20, 22, 30-31, 33

52 U.S.C. § 10310(c)(1) ........................................... 17, 41

Ariz. Rev. Stat. § 13-702(D) .......................................... 9

Ariz. Rev. Stat. § 13-801(A) .......................................... 9

Ariz. Rev. Stat. § 16-122 ................................................ 5

viii

Ariz. Rev. Stat. § 16-135(B)........................................... 5

Ariz. Rev. Stat. § 16-142(A)(1) ...................................... 3

Ariz. Rev. Stat. § 16-411(B)(4) ...................................... 3

Ariz. Rev. Stat. § 16-452(A) .......................................... 4

Ariz. Rev. Stat. § 16-452(B)........................................... 4

Ariz. Rev. Stat. § 16-541 ................................................ 3

Ariz. Rev. Stat. § 16-542(D) .......................................... 8

Ariz. Rev. Stat. § 16-584(B)........................................... 5

Ariz. Rev. Stat. § 16-584(C)........................................... 5

Ariz. Rev. Stat. § 16-621(A) .......................................... 6

Ariz. Rev. Stat. § 16-1005(H) ........................................ 9

Ariz. Rev. Stat. § 16-1005(I)(2) ..................................... 9

N.C. Gen. Stat. Ann. § 15A-1340.17(c) ....................... 47

N.C. Gen. Stat. Ann. § 15A-1340.17(d) ...................... 47

N.C. Gen. Stat. Ann. § 163-226.3(a)(5) ....................... 47

LEGISLATIVE M ATERIALS

H.R. Rep. No. 109-478 (2006), as

reprinted in 2006 U.S.C.C.A.N. 618 ..................... 49

S. Rep. No. 97-417 (1982), as reprinted

in 1982 U.S.C.C.A.N. 177 ...............21, 24, 26, 32-33

OTHER A UTHORITIES

2020 November Election, Arizona Citizens

Clean Elections Commission, https://

www.azcleanelections.gov/arizona-electi

ons/November-3-election ......................................... 3

ix

Dustin Gardiner, Gaynor, Hobbs Have

Vastly Different Views on Access to

Ballot, Dark Money in Elections, The

Republic (Oct. 26, 2018), https://www.az

central.com/story/news/politics/election

s/2018/10/26/arizona-secretary-state-ele

ction-steve-gaynor-katie-hobbs-have-dif

fering-views/1655635002/ ..................................... 4, 5

Press Release, Arizona Attorney General,

Two Individuals Accused of Ballot

Harvesting (Dec. 23, 2020), https://azag.

gov/press-release/two-individuals-accus

ed-ballot-harvesting-yuma-county ......................... 9

Press Release, Arizona Secretary of State,

Hobbs Opposes AG’s Appeal of DNC v.

Hobbs (Jan. 29, 2020), https://azsos.gov/a

bout-office/media-center/press-releases/

1094 ............................................................................. 5

Daniel P. Tokaji, Applying Section 2 to the

New Vote Denial, 50 Harv. C.R.-C.L. L.

Rev. 439 (2015) ........................................................ 27

INTRODUCTION

“[V]oting discrimination still exists; no one doubts

that.” Shelby Cnty. v. Holder, 570 U.S. 529, 536 (2013).

Since this Court’s 2013 decision in Shelby County,

plaintiffs seeking to redress voting discrimination have

relied primarily on Section 2 of the Voting Rights Act

(“VRA”). The en banc court below applied the two-step

test generally used by the circuit courts to address such

claims and found that both Arizona’s policy of refusing

to count ballots cast out of precinct (the “OOP Policy”)

and its law prohibiting the non-fraudulent collection of

early ballots (“H.B. 2023”) resulted in voting

discrimination in violation of Section 2.

In a radical departure from the status quo,

Petitioners argue that Section 2’s results test should not

even apply to supposedly facially race-neutral policies or

practices like those at issue here, regardless of their

actual impact on minority voters. That position finds no

support in the text, structure, or purpose of the statute.

The United States, in contrast, offers a more modest

approach—restyling the circuits’ two-step test as a

three-part inquiry, but leaving largely undisturbed the

substantive standard for determining the existence of

unlawful voting discrimination. In the United States’

formulation, Section 2 prohibits a result where (1) voters

of one racial group have less ability to vote, and (2) the

challenged practice is found to be a cause of that lesser

ability, after (3) considering the government’s

justifications for the practice and all other relevant

circumstances. U.S. Br. 11-12, 25. Although the en banc

court articulated the Section 2 results test in different

terms, it nonetheless applied each element the United

2

States demands. Accordingly, even if the Court adopts

the United States’ articulation of the results test, the

decision below should be affirmed.

In line with the United States’ emphasis on looking

to the justifications for the challenged practice, the court

below underscored that the OOP Policy lacked any

legitimate justification. As Arizona’s chief elections

officer, Respondent Secretary of State Katie Hobbs is

particularly well-positioned to speak to the Policy’s lack

of justification. Precisely because she determined—in

consultation with county election officials—that there is

no justification for the Policy, Respondent Hobbs chose

not to appeal the decision below. Because State law

explicitly charges Respondent Hobbs with that

determination, and prohibits the Attorney General from

appealing against her wishes, the OOP Policy is not even

properly before this Court.

As to H.B. 2023, the ballot-collection statute, the

court below followed the same analysis the United

States recommends: It applied Section 2 to “smoke out”

disparate treatment and the risk of intentional

discrimination. U.S. Br. 16 (quotation marks omitted).

Looking at the undisputed facts, the court found not only

a risk of intentional discrimination, but also actual

intentional discrimination, in violation of Section 2’s

results and intent tests and the Fifteenth Amendment.

Properly read, the decision below does exactly what

the United States advocates. It applies the plain text of

Section 2 to an “intensely local appraisal” of the facts

before it. U.S. Br. 18 (quoting Thornburg v. Gingles, 478

U.S. 30, 78 (1986)). The decision should be affirmed.

3

STATEMENT

A. Arizona’s Election-Administration Structure.

Elections in Arizona are conducted under the

authority of the Secretary of State, “Arizona’s chief

elections officer.” JA244; accord Ariz. Rev. Stat. § 16142(A)(1); see also Mi Familia Vota v. Hobbs, 977 F.3d

948, 950-51 (9th Cir. 2020). Like most states, Arizona

provides for voting either by mail or in person. Ariz.

Rev. Stat. § 16-541; JA259. Since 2011, Arizona has

allowed counties to choose whether to conduct in-person

voting at precinct polling places or at countywide “vote

centers.” JA262-63. The vote-center model “allow[s] any

voter in that county,” regardless of home precinct, “to

receive the appropriate ballot for that voter on election

day” at a voting center “and to lawfully cast the ballot.”

Ariz. Rev. Stat. § 16-411(B)(4). In the 2020 election, the

great majority of Arizona’s counties—including the most

populous county, Maricopa—opted to use either a votecenter model or a hybrid model in which voters could

vote at either their assigned precinct or a vote center.

2020 November Election, Arizona Citizens Clean

Elections Commission.1 As the United States

acknowledges, the OOP Policy “‘ha[s] no impact’ in

counties using the vote-center system.” U.S. Br. 4 n.1

(quoting JA263).

The Arizona Legislature has charged the Secretary

of State with drafting an “Elections Procedures Manual”

to govern how elections are conducted in the State. The

Manual must “prescribe rules” for, among other things,

1

URLs for online sources appear in the Table of Authorities.

4

“the procedures for early voting and voting,” as well as

for “producing, distributing, collecting, counting,

tabulating and storing ballots.” Ariz. Rev. Stat. § 16452(A); see Ariz. Libertarian Party, Inc. v. Bayless, 351

F.3d 1277, 1280 (9th Cir. 2003) (per curiam). Though she

need not follow their advice, the Secretary must consult

with county election officials before prescribing these

rules. Ariz. Rev. Stat. § 16-452(A).

Where Arizona’s statutes do not mandate a specific

policy, the Secretary may choose between permissible

alternatives and enshrine her choice in the Manual.2 See,

e.g., Gonzalez v. Arizona, 677 F.3d 383, 404 (9th Cir.

2012), aff’d sub nom. Arizona v. Inter Tribal Council of

Ariz., Inc., 570 U.S. 1 (2013). The Manual “has the force

and effect of law,” independent of the statutes it

implements and interprets. Id. at 397.

The current Secretary of State, Respondent Hobbs,

took office in January 2019. She campaigned in 2018 on a

platform that emphasized “removing barriers that can

make it harder for minorities, seniors and low-income

people to vote.” Dustin Gardiner, Gaynor, Hobbs Have

Vastly Different Views on Access to Ballot, Dark Money

in Elections, The Republic (Oct. 26, 2018). Respondent

Hobbs expressly opposed H.B. 2023 (the ballotcollection law) during her campaign, stating that it was

“certainly meant to disenfranchise voters” and was

2

The Attorney General and Governor must approve the Manual

before it is published, Ariz. Rev. Stat. § 16-452(B), but the Attorney

General has described this duty as “ministerial,” State Defs.’ Reply

in Supp. of Mot. to Dismiss Second Am. Compl. at 2, 4 n.4, Ariz.

Democratic Party v. Ariz. Sec’y of State’s Office, 2017 WL 840693

(D. Ariz. Feb. 14, 2017) (No. 2:16-CV-01065-DLR), ECF No. 262.

5

“unnecessary because voter fraud already is a felony” in

Arizona. Id. Her opponent, by contrast, supported H.B.

2023 and advocated, among other things, that election

materials no longer be printed in Spanish. Id.

Upon assuming office, Respondent Hobbs inherited

this lawsuit from her predecessor. She never defended

H.B. 2023 in court. See Notice of Substitution of Party,

DNC v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (No. 1815845), ECF No. 82. Following the en banc court’s ruling

below, she consulted with county officials and decided

that she also would no longer defend the OOP Policy.

Press Release, Ariz. Sec’y of State, Hobbs Opposes AG’s

Appeal of DNC v. Hobbs (Jan. 29, 2020). She engaged in

“conversations with county recorders and election

officials in all 15 counties” and was “confident in their

ability to address the issues associated with out-ofprecinct voting without needlessly extending this

litigation.” Id. The Secretary thus determined that she

would not seek further review. Id. The Attorney

General nonetheless appealed against her wishes.

B. Arizona’s Policy Regarding Provisional Ballots

Cast “Out of Precinct.”

Arizona’s OOP Policy “derives from the collective

effect of” several Arizona statutes “and related rules in

the Arizona Elections Procedures Manual.” JA243.

Statutory provisions require that voters appear on the

register in the precinct in which they reside, Ariz. Rev.

Stat. § 16-122, and that those not listed on a precinct’s

register be allowed to cast provisional ballots, id. §§ 16135(B), 16-584(B)-(C).

6

No Arizona statute prohibits county recorders from

counting provisional ballots for those offices for which

out-of-precinct (“OOP”) voters are eligible to vote,

including all statewide offices. That directive comes

from the Manual alone. JA37-38. The Manual states that

county recorders may only count a provisional ballot if

“the voter is eligible to vote in the precinct” and is not

“in the wrong precinct/voting area.” Id. Unless voters

meet these requirements, their “ballot[s] shall remain

unopened and shall not be counted.” JA37.

County officials “are not empowered to count or

reject ballots at their discretion.” JA266. Instead, “[a]ll

proceedings at the counting center … shall be conducted

in accordance with the approved instructions and

procedures manual.” Ariz. Rev. Stat. § 16-621(A). The

Manual is thus the operative source of the OOP Policy.

See JA266 (holding that plaintiffs’ injuries from the OOP

Policy were redressable because the court could require

the Secretary “to prescribe [plaintiffs’ proffered]

procedure in the Elections Procedures Manual, which

county election officials then would be bound by law to

follow”).

Relying on the district court’s factual findings but

disagreeing with its ultimate conclusion, the en banc

Ninth Circuit held that the OOP Policy violates Section

2. JA659. The court applied the two-step test the circuits

generally use for vote-denial claims. JA612. Under that

test, the court first determined whether the Policy

resulted in a disparate burden on members of the

protected class. Id. Next, the court analyzed whether

the Policy “interacted with social and historical

conditions” to cause that disparate burden. JA613.

7

At the first step, the court found that the OOP Policy

clearly resulted in a disparate burden on minority

voters. “Uncontested evidence in the district court

established that minority voters in Arizona cast OOP

ballots at twice the rate of white voters.” JA617; see

JA332-33, 594-96. This was in part because minority

voters in Arizona experience 30% less polling-place

stability than white voters across elections. JA111, 590.

In key counties, Hispanic and Native American voters

lived further from their polling places than white voters.

JA592-93. The court found that “[v]oters who live more

than 1.4 miles from their assigned polling place are 30

percent more likely to vote OOP than voters who live

within 0.4 miles of their assigned polling place.” JA592.

The undisputed evidence also showed that Arizona is an

“extreme outlier,” rejecting OOP ballots at a rate more

than 11 times higher than the next highest state. JA58889. Relying on this evidence, the en banc court concluded

that “[t]he challenged practice—not counting OOP

ballots [at all]—results in ‘a prohibited discriminatory

result’; a substantially higher percentage of minority

votes than white votes are discarded.” JA622 (quotation

marks omitted).

At the second step, the court considered the Senate

Report factors (“Senate factors”) this Court embraced in

Gingles to perform Section 2’s totality-of-circumstances

inquiry. JA623-24. The court gave particular weight to

the “tenuousness” of the State’s justification for the

OOP Policy, noting “[t]here is no finding by the district

court that would justify, on any ground, Arizona’s policy

of entirely discarding OOP ballots.” JA655. The State

justified the OOP Policy solely by pointing to the

8

importance of Arizona’s precinct-based voting system.

JA654-55. However, the district court made “no finding

that counting or partially counting OOP ballots would

threaten the integrity of” this system. JA655.

Absent the OOP Policy, Arizona would count OOP

ballots for all eligible elections, including national and

statewide elections. After consulting with county

election officials, Respondent Hobbs determined that

counties are able to implement such a system. See Press

Release, Ariz. Sec’y of State, supra. The district court

likewise acknowledged that properly counting OOP

ballots was “administratively feasible.” JA307. Indeed,

in recent elections, most Arizona counties have

abandoned the precinct-based model and instead used

either a vote-center or a hybrid model—successfully

counting votes cast outside the precincts where voters

resided. Supra at 3. This confirms the Secretary’s

determination that counties can account for OOP votes

without disenfranchising voters.

C. Arizona’s Ballot-Collection Statute, H.B. 2023.

Arizona introduced “early” voting-by-mail in the

1990s. JA259. Since 1997, Arizona has prohibited anyone

from possessing another voter’s unmarked early ballot.

Ariz. Rev. Stat. § 16-542(D); JA260. Arizona also “has

long” criminalized fraudulent ballot-collection practices,

including “knowingly mark[ing] a voted or unvoted

ballot or ballot envelope with the intent to fix an

election.” JA293 (quoting Ariz. Rev. Stat. § 16-1005(A))

(alteration in original). However, in 2016, Arizona

passed H.B. 2023, which criminalized non-fraudulent

third-party ballot collection. JA605-06. Except for a

“family member, household member or caregiver of the

9

voter,” any “person who knowingly collects voted or

unvoted early ballots from another person is guilty of a

class 6 felony.” Ariz. Rev. Stat. § 16-1005(H), (I)(2).

Under this law, someone who helps an elderly neighbor

by dropping her ballot in the mailbox can be punished by

up to two years in prison and a $150,000 fine. Id. §§ 13702(D), 13-801(A); see Press Release, Ariz. Att’y Gen.

(Dec. 23, 2020).

The State provided two justifications for H.B. 2023:

preventing absentee voter fraud and maintaining the

reality and public perception of election integrity.

JA288. However, “no evidence of any fraud in the long

history of third-party ballot collection in Arizona” has

been found, JA601, even after Arizona counties were

subpoenaed in this case for such evidence, JA290. The

district court likewise found no evidence of widespread

public concern about ballot-collection fraud either in the

record or before the Arizona Legislature when it passed

H.B. 2023. JA290. Moreover, fraudulent ballot collection

was a felony long before H.B. 2023 criminalized nonfraudulent collection, and, of course, fraudulent

collection remains a felony.

While there is no record evidence of absentee voter

fraud in Arizona, there is “[e]xtensive and

uncontradicted evidence … that prior to the enactment

of H.B. 2023, third parties collected a large and

disproportionate number of early ballots from minority

voters.” JA659; see JA325-30. The district court received

“direct evidence from witnesses who had themselves

acted as third-party ballot collectors” or who had

“personally supervised” or “witnessed” third-party

ballot collection. JA661. These witnesses “established

10

that many thousands of early ballots were collected from

minority voters by third parties” but, the district court

found, white voters “did not significantly rely on thirdparty ballot collection.” JA661.

The district court thus concluded that minority

voters in Arizona are far more likely than white voters

to rely on third-party ballot collection. JA329-30.

Relying on these findings but disagreeing with the

district court’s legal conclusions, the en banc court found

that H.B. 2023 had a significant, discriminatory effect on

minority voters. The en banc court then examined the

totality of circumstances, drawing on its analysis of the

OOP Policy and citing additional record evidence.

JA662-70.

First, the court noted that H.B. 2023 “grows directly

out of” Arizona’s history of race discrimination. JA663.

Legislators abandoned their initial attempt to ban nonfraudulent ballot collection in 2011 after the Department

of Justice discovered “evidence in the record that the

provision intentionally targeted Hispanic voters” while

reviewing Arizona’s preclearance request under Section

5 of the VRA. Id. Legislators passed a second, similar

law in 2013, but soon faced a voter referendum that

would have both repealed the law and imposed a

supermajority requirement on any future legislation on

the topic. Id. To avoid that result, legislators repealed

the law themselves. Id. Only after this Court eliminated

the preclearance formula in Shelby County did the

Arizona Legislature proceed to pass H.B. 2023, after a

campaign “marked by race-based appeals.” Id.

Second, the court recognized that “H.B. 2023 is

closely linked to the effects of discrimination that

11

‘hinder’ the ability of American Indian, Hispanic, and

African American voters ‘to participate effectively in the

political process.’” JA664 (quoting Gingles, 478 U.S. at

37). Most relevant, “[r]eady access to reliable and secure

mail service is nonexistent in some minority

communities,” including on Arizona’s 21 reservations.

JA327. Outside of major urban centers, only 18% of

Native Americans in Arizona have access to home mail

service. JA124, 183. And the district court found that “[a]

surprising number of voters in the Hispanic community

also distrust returning their voted ballot via mail” and

that “unsecure mailboxes are an impediment for urban

minorities who distrust the mail service and prefer

instead to give their ballots to a volunteer.” Id.

Third, “[t]he enactment of H.B. 2023 was the direct

result of racial appeals in a political campaign.” JA665;

see JA343-45. Proponents of H.B. 2023 circulated a video

created by Maricopa County Republican Chair A.J.

LaFaro that featured “surveillance footage of a man of

apparent Hispanic heritage appearing to deliver early

ballots” and included commentary from LaFaro stating

he “did not know if the person was an illegal alien, a

[D]reamer, or citizen, but knew that he was a thug.”

JA344. The video played a prominent role in the debates

over H.B. 2023 and was featured in campaign

advertisements for Respondent Hobbs’s predecessor,

Michele Reagan. JA345.

Finally, the en banc court concluded that Arizona’s

justifications for H.B. 2023 were tenuous. JA666-70. The

State justified H.B. 2023 as a fraud-prevention and

election-integrity measure. JA288. But the district court

found “no direct evidence that the type of ballot

12

collection fraud the law is intended to prevent or deter

has occurred,” JA347, despite bill advocates’ extensive

efforts to find such fraud, JA290, 347, 667-68. Nor was

election integrity a justification: “[T]hird-party ballot

collection has had a long and honorable history” in

Arizona, and any recent distrust of it stemmed from “the

fraudulent campaign mounted by proponents of H.B.

2023.” JA669-70.

After holding that H.B. 2023 failed Section 2’s results

test, the en banc court held that H.B. 2023 was passed

with discriminatory intent in violation of both Section 2

and the Fifteenth Amendment. JA681. The court

canvassed the four factors from Village of Arlington

Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252, 266-68 (1977), and found that all supported

the finding that racial discrimination was “a motivating

factor” for H.B. 2023’s passage and that the law would

not have been enacted without race-based allegations.

JA679-80, 357.

SUMMARY OF ARGUMENT

I. Under Section 2, a state may not impose or apply

any policy or practice that “results in a denial or

abridgement of the right of any citizen of the United

States to vote on account of race or color [or languageminority status].” 52 U.S.C. § 10301(a). A Section 2

violation is established by showing, “based on the

totality of circumstances, … that the political processes

leading to nomination or election in the State or political

subdivision are not equally open to participation by

members of a [protected] class of citizens … in that its

members have less opportunity than other members of

13

the electorate to participate in the political process and

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

A. The plain text of the statute dictates its

application. Whether that text is styled as the two-step

test the circuits use or the three-part test the United

States proposes, the text recognizes one core principle:

To prevail on a vote-denial claim, plaintiffs must show

that—based on the totality of circumstances and with

particular attention to the government’s justification—

the challenged practice results in minority voters’

having less ability to vote than other citizens. While

Respondent Hobbs largely agrees with the United

States’ reading of Section 2, the United States’

arguments that Section 2 requires proximate rather

than but-for causation, that only state action is relevant

to causation, and that theoretical alternative voting

methods can excuse discriminatory policies misread the

statute and misunderstand its purpose.

B. Petitioners depart radically from both the

established circuit test and the United States’ standard

by proposing limits on Section 2 that have no basis in

text, purpose, or precedent. Petitioners wrongly assert

that Congress’s 1982 amendments to Section 2 targeted

only vote dilution (not vote denial) and that any

purportedly race-neutral “time, place, and manner”

voting restriction is immune from scrutiny under

Section 2. A review of text and precedent easily disposes

of both arguments. And, tellingly, the United States

embraces neither. The United States likewise disavows

Petitioners’ textually baseless arguments that the size

of a disparity under Section 2 must be quantified to

14

prove liability and that the Senate factors do not apply

to vote-denial claims.

C. Properly read, Section 2 raises no constitutional

issues. Under the statute’s plain language, a violation

can never be proven merely by showing a statistical

disparity in voting; the government’s policy must be a

but-for cause of that disparity. Governments thus cannot

be liable for racial disparities they did not help create.

And Section 2’s totality-of-circumstances inquiry gives

governments the opportunity to justify their policies.

Section 2 fully recognizes that states bear primary

responsibility for administering elections—including by

establishing various time, place, and manner

restrictions. It simply prohibits racial discrimination in

election administration, even when caused by facially

race-neutral policies.

II. The OOP Policy is not properly before this Court;

and, in any event, it violates Section 2’s results test

under either the en banc court’s or the United States’

formulation.

A. No Petitioner has standing to appeal the decision

on the OOP Policy. This Court looks to Arizona law to

determine who has standing to represent the State’s

interests in court. For the OOP Policy—a policy the

Secretary of State promulgated, not a statute the

Legislature enacted—that person is the Respondent,

Secretary of State Hobbs. Arizona’s Attorney General

cannot appeal against Respondent Hobbs’s wishes, and

the Arizona Republican Party (“ARP”) Petitioners also

lack standing.

15

B. Even if any Petitioner had standing, the decision

below was correct in finding that the OOP Policy violates

Section 2. As the United States agrees, the district court

was wrong to uphold the Policy based on the ground that

it affected only a “small” number of voters. Moreover,

Petitioners cannot justify the Policy. Indeed,

Respondent Hobbs chose not to appeal the decision

below precisely because the Policy is unjustified. This

lack of justification is even more apparent today, when

the great majority of Arizona’s counties use vote-center

or hybrid models that belie any interest in protecting a

precinct-based system.

III. The ballot-collection statute, H.B. 2023, violates

Section 2’s results and intent tests, and likewise violates

the Fifteenth Amendment.

A. Undisputed evidence demonstrated that minority

voters rely on ballot collection at higher rates than white

voters, and that being unable to rely on anyone other

than family/household members or caregivers to assist

with ballot delivery would disproportionately burden

minority voters. H.B. 2023 thus led minority voters to

have less ability to vote than other voters. None of

Arizona’s proffered justifications explains how

criminalizing non-fraudulent ballot collection prevents

fraudulent ballot collection—which Arizona outlawed

long before H.B. 2023.

B. In finding that H.B. 2023 was enacted with

discriminatory intent, the en banc court did not

transgress the limits of clear-error review. It simply

applied the Arlington Heights factors to a record replete

with evidence of racially motivated appeals.

16

ARGUMENT

I. Section 2 Prohibits Any Voting Practice that

Results in a Denial of the Right to Vote on

Account of Race.

For the reasons explained by DNC Respondents, the

court below properly articulated and applied the twopart test used by the circuits for vote-denial claims.

Although the United States restates the test as a threepart analysis, U.S. Br. 14-25, its elements are largely the

same as those applied by the en banc court. Petitioners,

by contrast, invent from whole cloth various restrictions

or additional elements they want this Court to graft onto

Section 2. Free of the caricature drawn by Petitioners,

Section 2’s results test does not implicate any

constitutional concerns.

A. Section 2’s Results Test Follows the Plain

Text.

As with any statute, interpreting Section 2 requires

“a careful examination of the ordinary meaning and

structure of the law itself. Where … that examination

yields a clear answer, judges must stop.” Food Mktg.

Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019).

Section 2 begins with an express prohibition: “No

voting qualification or prerequisite to voting or

standard, practice, or procedure shall be imposed or

applied by any State or political subdivision in a manner

which results in a denial or abridgement of the right of

any citizen of the United States to vote on account of

race or color [or language-minority status].” 52 U.S.C.

§ 10301(a). The statute then details what violates that

prohibition—a showing that, “based on the totality of

17

circumstances, … the political processes leading to

nomination or election in the State or political

subdivision are not equally open to participation by

members of a [protected] class of citizens … in that its

members have less opportunity than other members of

the electorate to participate in the political process and

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

Congress further defined the terms “vote” and “voting”

to encompass “all action necessary to make a vote

effective,” including “registration, … casting a ballot,

and having such ballot counted properly and included in

the appropriate totals of votes cast.” Id. § 10310(c)(1).

1. The United States translates this text into a

three-part test: “[F]irst, members of a protected group

must have less ability to vote than other voters in light

of the burdens imposed by the challenged practice and

readily available alternative voting methods; second, the

challenged practice must be responsible for that lesser

ability, rather than other external factors not fairly

attributed to the practice; and third, courts must take

account of the totality of circumstances, including,

among other things, the specific justifications for the

challenged practice.” U.S. Br. 18.

Respondent Hobbs concurs with much of this

interpretation. First, because Section 2’s language

“refers to the consequences of actions and not just to the

mindset of actors,” Section 2 imposes disparate-impact

liability. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive

Cmtys. Project, Inc., 576 U.S. 519, 533 (2015); see

Chisom v. Roemer, 501 U.S. 380, 394-95 (1991). Both the

court below and the United States agree. JA610; U.S.

Br. 16-17. Second, because Section 2 includes a causation

18

requirement, a plaintiff cannot prevail merely by

showing a statistical disparity. Inclusive Cmtys. Project,

576 U.S. at 542. Both the court below and the United

States agree. JA613; U.S. Br. 17. Third, Section 2

guarantees equality of “opportunity” but does not

guarantee particular electoral outcomes. Both the court

below and the United States agree. JA 613; U.S. Br. 1819. Fourth, Section 2 protects “the right of any citizen of

the United States to vote” and thus its “focus should be

on individuals” rather than solely on the broader

electorate. Bostock v. Clayton Cnty., 140 S. Ct. 1731,

1740 (2020); see Holder v. Hall, 512 U.S. 874, 918 (1994)

(Thomas, J., concurring in the judgment). Both the court

below and the United States agree. JA619-21; U.S. Br.

29. Finally, Congress expressly mandated that courts

consider the totality of circumstances—not merely some

subset of circumstances. Both the court below and the

United States agree. JA613; U.S. Br. 24.

The United States and Respondent Hobbs differ on

just three aspects of the United States’ standard. First,

the United States claims that the statute requires

proximate, not but-for, causation.3 U.S. Br. 22. That is

wrong. It is the “ancient and simple ‘but for’ common law

causation test,” not proximate causation, that “supplies

the ‘default’ or ‘background’ rule against which

Congress is normally presumed to have legislated when

creating its own new causes of action.” Comcast Corp. v.

Nat’l Ass’n of Af. Am.-Owned Media, 140 S. Ct. 1009,

3

Although ARP Petitioners also advocate for proximate causation,

Brnovich Petitioners appear to accept that the statute requires only

“actual causality.” Brnovich Br. 23 (quotation marks omitted).

19

1014 (2020). Here, Section 2’s plain text confirms that

Congress intended this lesser, default causation

standard to apply: The statute uses the phrases “results

in” and “on account of race” to describe its causation

elements. 52 U.S.C. § 10301(a). Both indicate but-for

causation.

As an initial matter, “[a] thing ‘results’ when it

‘[a]rise[s] as an effect, issue, or outcome from some

action, process, or design.’” Burrage v. United States,

571 U.S. 204, 210 (2014) (alterations in original). This

Court has therefore held that the phrase “‘[r]esults from’

imposes … a requirement of actual causality.” Id. at 211;

see also People v. Wood, 741 N.W.2d 574, 576 (Mich. Ct.

App. 2007) (“by using the word ‘result’ instead of ‘cause’

in the statute, the Legislature specifically directed that

only factual causation need be established”) (cited by

Burrage, 571 U.S. at 214). Thus, “‘the ordinary meaning

of “result[s in]” imposes a requirement of actual or butfor causation,’ and not proximate causation.” United

States v. Burkholder, 816 F.3d 607, 614 (10th Cir. 2016)

(first alteration in original).

Meanwhile, the phrase “on account of race” is

synonymous with “because of race.” See Bostock, 140 S.

Ct. at 1739. And this Court has repeatedly held that a

statutory “‘because of’ test incorporates the ‘simple’ and

‘traditional’ standard of but-for causation.” Id. (quoting

cases). Likewise, the Fifteenth Amendment—which also

uses “on account of race,” U.S. Const. amend. XV—is

“best understood to forbid any voter qualification that

makes race … a but-for cause of the denial of the right to

vote.” Jones v. Governor of Fla., 975 F.3d 1016, 1042

(11th Cir. 2020) (opinion of W. Pryor, C.J.).

20

The text leaves no doubt about either causation

element, as Section 2’s context and purpose confirm.

Nothing in the provision’s “context” indicates a higher

causation standard; but-for causation would not, for

instance, “cannibalize” other language in the statute.

Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833,

1842-43 (2018). Quite the opposite. Section 2 requires

courts to evaluate a challenged policy in “the totality of

circumstances.” 52 U.S.C. § 10301(b). Imposing a

proximate-cause requirement would unduly restrict the

scope of this congressionally mandated inquiry. “It

would be unacceptable to adopt a causal standard so

strict that it would undermine congressional intent

where neither the plain text of the statute nor legal

tradition demands such an approach.” Paroline v.

United States, 572 U.S. 434, 458 (2014).

Second and relatedly, the United States asserts that

Section 2 requires plaintiffs to prove that state action

caused the racial disparity. U.S. Br. 21-24; see also ARP

Br. 29-30; Brnovich Br. 24, 32. If the United States

means that governmental policy must be the vehicle by

which societal disparities are channeled into the

electoral realm, it is correct—and the court below

already required as much. But a claim that a court may

consider only state-sponsored discrimination in its

analysis runs headlong into precedent. This Court has

long held that “Section 2 … prohibits any practice or

procedure that, ‘interact[ing] with social and historical

conditions,’ impairs the ability of a protected class to

elect its candidate of choice on an equal basis with other

voters.” Voinovich v. Quilter, 507 U.S. 146, 153 (1993)

(emphasis added) (alterations in original). Thus, though

21

the challenged practice must be a but-for cause of

minority voters’ unequal opportunity to participate and

elect, Section 2 allows courts to consider private activity

and societal and historical discrimination, as well.4

This does not make governments liable for

discrimination they did not cause or caused only in the

past. See U.S. Br. 22-23; ARP Br. 30. Nor does it force

courts to impose Section 2 remedies that would require

the government to eliminate private discrimination. See

Inclusive Cmtys., 576 U.S. at 544; S. Rep. No. 97-417, at

31 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 208

(“the remedy fashioned must be commensurate with the

right that has been violated”). Rather, it recognizes that

electoral laws do not exist in a vacuum and that certain

election practices, interacting with preexisting

inequities, can create predictably unequal electoral

opportunities. Thus, a government policy violates

Section 2 if it “combines with other factors to produce

the [prohibited] result, so long as the other factors alone

would not have done so.” Burrage, 571 U.S. at 211. If the

challenged policy is a cause of a disparity in opportunity,

4

See, e.g., League of United Latin Am. Citizens v. Perry (LULAC),

548 U.S. 399, 438-40 (2006) (finding districting change violated

Section 2 because local Hispanics “were becoming more politically

active,” and “the ‘political, social, and economic legacy of past

discrimination’” against “Latinos in Texas … may well ‘hinder their

ability to participate effectively in the political process’”);

Thornburg v. Gingles, 478 U.S. 30, 80 (1986) (holding multimemberdistricting scheme in violation of Section 2 based on its interaction

with “racially polarized voting; the legacy of official discrimination

in voting matters, education, housing, employment, and health

services; and the persistence of campaign appeals to racial

prejudice”).

22

and if that disparity would not exist but for voters’ race,

that is the causation Section 2 requires.

Third and finally, the United States argues that

“courts considering limitations on one voting method

must account for available alternative methods.” U.S.

Br. 20-21.5 To be sure, no voting practice exists in

isolation. And courts should consider the challenged

practice’s interaction with other election laws as part of

the totality-of-circumstances inquiry—for other laws,

while “neither in themselves improper nor invidious,”

may

“enhance[]

the

opportunity

for

racial

discrimination” resulting from the challenged practice.

White v. Regester, 412 U.S. 755, 766 (1973).

But just as a plaintiff cannot establish liability

merely by pointing to statistical disparities in voting

practices, so, too, a defendant cannot escape liability

merely by pointing to the availability of alternative

voting practices. Minority voters always will have some

theoretical other means to vote. Simply claiming that

whatever other practices the government has are

equally open will not do. Section 2 does not give

defendants a get-out-of-jail-free card for one policy with

discriminatory results just because they have other nondiscriminatory policies. The entire political process must

be “equally open” to voters of all races. 52 U.S.C.

§ 10301(b) (emphasis added). If the government gives

voters of one race more opportunity to vote than voters

5

Brnovich Petitioners advance a more extreme version of this

argument, asserting that states can absolve themselves of Section 2

liability for a discriminatory policy if other aspects of their election

systems are sufficiently “accommodating.” Brnovich Br. 22.

23

of other races, it is no answer to say the process is open

enough for the disadvantaged voters.6

This standard does not prevent states from

“eliminat[ing] a [voting] method some prefer” if the

resulting process remains equally open, nor does it force

states to “adopt” a new voting method that “members of

one race would prefer” if the status quo already provides

equal opportunity. U.S. Br. 21. Section 2 does not

mandate “maximiz[ing]” minority voters’ opportunities.

Johnson v. De Grandy, 512 U.S. 997, 1017 (1994).

Instead, when considering the availability of alternative

methods, courts must undertake an “‘intensely local

appraisal of the design and impact’ of the contested

electoral mechanisms.” Thornburg v. Gingles, 478 U.S.

30, 79 (1986) (emphasis added). And they must bear in

mind that deliberate elimination of a voting practice

known to be used disproportionately by minority voters

creates exactly the “risk of purposeful discrimination”

that the United States warns against. U.S. Br. 16

(quoting City of Rome v. United States, 446 U.S. 156, 177

(1980)); cf. League of United Latin Am. Citizens v. Perry

(LULAC), 548 U.S. 399, 440 (2006).

2. This reading of Section 2 is bolstered “in light of

the purpose underlying” the statute. Reno v. Bossier

Par. Sch. Bd., 520 U.S. 471, 487 (1997). This Court has

6

ARP Petitioners’ example illustrates this. They note that, “[i]f a

state sends unsolicited ballot applications to residents of white

neighborhoods, … but not to residents of black neighborhoods, that

would amount to giving the latter less ‘opportunity’ to participate.”

ARP Br. 27. But that is of course true even though black voters

could vote in other ways.

24

long recognized that “[t]he Voting Rights Act was aimed

at the subtle, as well as the obvious, state regulations

which have the effect of denying citizens their right to

vote because of their race.” Allen v. State Bd. of

Elections, 393 U.S. 544, 565 (1969). Consistent with that

tenet, Section 2 “should be interpreted in a manner that

provides ‘the broadest possible scope’ in combating

racial discrimination.” Chisom, 501 U.S. at 403.

Congress passed this sweeping law to address a

sweeping problem. For a century after the Fifteenth

Amendment formally guaranteed minorities the right to

vote, “[m]anipulative devices and practices were …

employed to deny the vote to blacks.” Rice v. Cayetano,

528 U.S. 495, 513 (2000). “Early attempts to cope with

this vile infection resembled battling the Hydra.

Whenever one form of voting discrimination was

identified and prohibited, others sprang up in its place.”

Shelby Cnty., 570 U.S. at 560 (Ginsburg, J., dissenting).

Indeed, when pre-VRA adjudication “produced

favorable results, affected jurisdictions often ‘merely

switched to discriminatory devices not covered by the

federal decrees.’” City of Rome v. United States, 446

U.S. 156, 174 (1980).

Congress devised an intentionally expansive

solution. In 1982, it overruled this Court’s decision in

City of Mobile v. Bolden that Section 2 forbade only

intentional discrimination. Gingles, 478 U.S. at 43-44. In

so doing, Congress reinstated the pre-Bolden standards

from White v. Regester with the “specific intent” of

allowing liability based on “discriminatory results

without proving any kind of discriminatory purpose.” S.

Rep. No. 97-417, at 27-28, 1982 U.S.C.C.A.N. at 205-06.

25

The Regester Court struck down a multimember district,

based in part on its interaction with other unchallenged

election laws that were “neither in themselves improper

nor invidious,” but potentially “enhanced the

opportunity for racial discrimination.” 412 U.S. at 766.

Crucial to the decision were the discriminatory practices

of a private “white-dominated organization” that

controlled the area’s political life. Id. And the Regester

Court affirmed elimination of another multimember

district because of how it “overlaid … on the cultural and

economic realities of the Mexican-American community

in Bexar County.” Id. at 769.

In restoring the standards from Regester, and

directing

consideration

of

the

“totality

of

circumstances,” Congress affirmed courts’ ability to

consider evidence of private discrimination—or the

lingering effects of past public discrimination—that

interact with the challenged practice to cause the

complained-of disparity. Indeed, the Senate factors

“were derived from the analytical framework of White

[v. Regester] … as refined and developed by the lower

courts.” Gingles, 478 U.S. at 36 n.4. Thus, Congress

adopted the Regester Court’s view that “whether the

political processes are ‘equally open’ depends upon a

searching practical evaluation of the [state’s] ‘past and

present reality.’” De Grandy, 512 U.S. at 1018.

B. Petitioners Depart from Section 2’s Text by

Inventing Restrictions.

In contrast to the United States, Petitioners suggest

radical departures from the statute that have no basis in

text, purpose, or precedent. The United States either

26

fails to embrace or expressly disavows each of

Petitioners’ positions.

First, Petitioners claim that Section 2 is aimed

“principally” at combating vote dilution, not vote denial.

ARP Br. 18, 36-38. Not true. Section 2 “refer[s] to any

methods for conducting a part of the voting process that

might … be used to interfere with a citizen’s ability to

cast his vote” and have it properly counted. Holder, 512

U.S. at 917-18. Thus, the amended “Section 2 prohibits

all forms of voting discrimination, not just vote

dilution.” Gingles, 478 U.S. at 45 n.10 (emphasis added).

The “unusually extensive legislative history of the 1982

amendment” belies Petitioners’ claims. Chisom, 501 U.S.

at 396. The Senate Report acknowledged that Congress

borrowed its standard from cases that “dealt with

[dilutive] electoral system features” but reiterated that

“Section 2 remains the major statutory prohibition of all

voting rights discrimination.” S. Rep. No. 97-417, at 30,

1982 U.S.C.C.A.N. at 207 (emphasis added). No matter

what the claim, “the ultimate test would be the White [v.

Regester] standard codified by this amendment of

Section 2.” Id.

To be sure, most post-1982 Section 2 claims have

involved vote dilution rather than vote denial. But that

is only because the “effectiveness of the now-defunct

Section 5 preclearance requirements … stopped wouldbe vote denial from occurring in covered jurisdictions.”

League of Women Voters of N.C. v. North Carolina, 769

F.3d 224, 239 (4th Cir. 2014). Since this Court struck

down the preclearance formula in Shelby County,

Section 2 has become the principal bulwark against

policies and practices that disenfranchise minority

27

voters. See Daniel P. Tokaji, Applying Section 2 to the

New Vote Denial, 50 Harv. C.R.-C.L. L. Rev. 439, 440

(2015). But Section 2 claims are expensive to litigate,

place the burden of proof on plaintiffs, and generally

cannot stop laws prior to implementation. So it is

unsurprising that pre-Shelby County, Section 5 was

plaintiffs’ primary tool for combating vote denial.

Second, Petitioners wrongly claim that “[r]aceneutral time, place, or manner regulations” cannot

implicate Section 2. ARP Br. 19; see Brnovich Br. 20. As

discussed above, Congress intentionally drafted Section

2 broadly to apply to any policy—even those that are

facially race-neutral—so long as the policy results in

reduced electoral opportunity for minority voters on

account of race.

Indeed, many of the policies that inspired the VRA

were facially neutral. Some states sought to prevent

minorities from voting by “ma[king] the ability to read

and write a registration qualification.” South Carolina v.

Katzenbach, 383 U.S. 301, 310-11 (1966). They also

imposed “property qualifications, ‘good character’ tests,

and the requirement that registrants ‘understand’ or

‘interpret’ certain matter.” Id. at 311. These facially

neutral laws caused racially disparate outcomes through

discriminatory application, id. at 311-12, and because of

their predictable interactions with other societal

inequalities like racially disparate literacy rates, id. at

310-11, or education rates, see Gaston Cnty. v. United

States, 395 U.S. 285, 289, 293 (1969).

Members of this Court have therefore recognized

that Section 2 “covers all manner of registration

requirements,” as well as “the locations of polling places,

28

the times polls are open, the use of paper ballots as

opposed to voting machines, and other similar aspects of

the voting process that might be manipulated to deny

any citizen the right to cast a ballot and have it properly

counted.” Holder, 512 U.S. at 922. Section 2’s broad

coverage means that “[i]f, for example, a county

permitted voter registration for only three hours one

day a week, and that made it more difficult for blacks to

register than whites, blacks would have less opportunity

‘to participate in the political process’ than whites, and

§ 2 would therefore be violated.” Chisom, 501 U.S. at 408

(Scalia, J., dissenting).

The vast majority of this Court’s Section 2 cases

involved practices that were, under Petitioners’ view,

race-neutral time, place, and manner regulations:

multimember districts, see Gingles, 478 U.S. at 46, “atlarge voting schemes,” id. at 47, and “anti-single-shot

voting rule[s],” Holder, 512 U.S. at 880 (plurality

opinion), to name a few.7 This Court thus has already

recognized that Section 2 reaches practices that regulate

7

Petitioners’ own examples undermine their position. For instance,

ARP Petitioners posit that Section 2 would prohibit leaving polling

places open longer in white neighborhoods than in minority

neighborhoods. ARP Br. 24-25. They also concede that Section 2

prohibits laws such as “[l]imiting the franchise to people who own a

home or hold a college degree … if minority voters have lower home

ownership or graduation rates.” Id. at 19; accord id. at 27. ARP

Petitioners try to distinguish this last example by claiming that a

race-neutral education test can violate Section 2 because it involves

voter qualifications rather than time, place, and manner regulations.

Id. at 19. But nothing in Section 2 suggests that race-neutral voter

qualifications can violate the statute but race-neutral time, place,

and manner regulations cannot.

29

only “how citizens vote,” ARP Br. 19, even if the laws

are uniform and race-neutral.

Ultimately, Petitioners ask this Court to carve a

huge swath of election laws out of Section 2’s domain.

But such “[a]n inflexible rule would run counter to the

textual command of § 2” to examine “‘the totality of

circumstances.’” De Grandy, 512 U.S. at 1018. Creating

safe harbors for entire categories of voting practices

would be particularly nonsensical when the very “need

for such ‘totality’ review springs from the demonstrated

ingenuity of state and local governments in hobbling

minority voting power.” Id.

Third, Petitioners contend that the decision below

“diverges from § 2’s textual requirements” because it

“does not require a substantial disparate impact” to

trigger liability. Brnovich Br. 31; see id. at 21, 30-31. But

it is Petitioners’ “substantial” disparity requirement

that floats free of the text. What is more, because

Petitioners never explain what qualifies as “substantial”

disparity, this requirement remains hopelessly vague.

In any event, this Court already rejected Petitioners’

contention in Chisom, when it ruled that Section 2

requires plaintiffs to prove inequality in both

opportunity to participate and opportunity to elect. 501

U.S. at 397. Justice Scalia argued that “a small minority”

would have “no protection against infringements of its

right ‘to participate in the political process’” under the

majority’s reading of Section 2, because the small

minority “will always lack the numbers necessary ‘to

elect its candidate.’” Id. at 397 n.24. But the Court

dismissed this concern, stating that it “rests on the

30

erroneous assumption that a small group of voters can

never influence the outcome of an election.” Id.

That reading hews to Section 2’s text, which

addresses “the right of any citizen of the United States

to vote.” 52 U.S.C. § 10301(a) (emphasis added). Thus, as

the United States correctly explains, “a practice can

violate Section 2 even if it affects only a small number of

voters.” U.S. Br. 29; accord JA522. The percentage

disparity between racial groups need not reach some

(undefined) threshold to affect the opportunity to vote:

Vote-denial cases involve inequalities in the voting

process itself, and “[a]ny abridgment of the opportunity

of members of a protected class to participate in the

political process inevitably impairs their ability to

influence the outcome of an election.” Chisom, 501 U.S.

at 397 (emphasis added).

To be sure, the size of a disparity may bear on

whether causation can be established, or whether the

totality of circumstances shows a discriminatory result.

But, as the United States recognizes (U.S. Br. 29), the

number of voters affected cannot limit threshold liability

under Section 2.

Finally, Petitioners seek to restrict the

congressionally mandated review of the “totality of

circumstances” to something less than a “totality.” They

begin by asserting that Section 2 guarantees only

equality of opportunity, not equality of outcomes. ARP

Br. 22; Brnovich Br. 20. Nobody quarrels with this

standard. The text of Section 2 requires it, both by

asking whether voters of one race “have less

opportunity” than others and by expressly disclaiming

that Section 2 mandates proportional representation. 52

31

U.S.C. § 10301(b). But Petitioners go further in claiming

that Section 2 does not apply to laws when minority

voters simply take less advantage of them. See ARP Br.

22, 28; Brnovich Br. 20.

To read Section 2 as Petitioners ask would make

mincemeat of its totality-of-circumstances inquiry. What

may seem like individual choices in a vacuum can be the

result of unequal underlying conditions’ interaction with

the challenged policy. That is precisely why the 1982

amendments “ma[d]e clear that an application of the

results test requires an inquiry into ‘the totality of the

circumstances.’” Chisom, 501 U.S. at 394. The text

“requires courts to consider ‘the whole picture.’” District

of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018). When

considering the “choices” made by minority voters,

courts must ask if the challenged policy “interacts with

social and historical conditions to cause an inequality.”

Gingles, 478 U.S. at 47.

Attempting an analogy, ARP Petitioners claim that

every person has an equal opportunity to attend free

high school, even if some choose to drop out. ARP Br. 28.

But if a county refuses to bus students to school, and

minority students in the county are far more likely to

lack the means to get to school without busing, then the

county’s policies have interacted with social factors to

result in minorities lacking an “equal opportunity” to

graduate. Cf. Swann v. Charlotte-Mecklenburg Bd. of

Ed., 402 U.S. 1, 30 (1971) (affirming use of busing as

court-ordered remedy because “[d]esegregation plans

cannot be limited to the walk-in school”). Similarly,

voters’ own choices can lead to disparities in voting, but

if those disparities would not have occurred but for the

32

state’s policy—and but for the voters’ race—Section 2

applies.

Petitioners further mount a wholesale attack on the

circuits’ consideration of the Senate factors, arguing

wrongly that they are relevant only to vote-dilution

claims. ARP Br. 20, 33; Brnovich Br. 32-33. But, as the

United States recognizes, courts may consider the

Senate factors whenever they “bear on the proper

Section 2 inquiry in a particular case.” U.S. Br. 31.

The Senate Report, as discussed, adopted those

factors from Regester and its progeny. Gingles, 478 U.S.

at 36 n.4. As ARP Petitioners note, these factors are

“indicative of intentional discrimination.” ARP Br. 36.

The Senate factors thus serve a similar function as the

indicia of intentional discrimination this Court

articulated in Arlington Heights. Indeed, several Senate

factors directly parallel the Arlington Heights factors.

For instance, Senate factors 1 and 5, on the history and

effects of discrimination, see Gingles, 478 U.S. at 36-37,

mirror Arlington Heights’ focus on “[t]he historical

background of the decision,” 429 U.S. at 267. And Senate

factor 9, on the government’s justification for the policy,

see Gingles, 478 U.S. at 37, plays a role similar to

Arlington Heights’ examination of the “specific

sequence of events leading up to the challenged

decision” and “[t]he legislative or administrative

history” of the act, 429 U.S. at 267-68.

Although the Senate Report derived its factors from

vote-dilution cases, the Report’s authors emphasized

that the same standards apply to all Section 2 claims. S.

Rep. No. 97-417, at 30, 1982 U.S.C.C.A.N. at 207. The

Report recognized that “[t]o establish a violation,

33

plaintiffs could show a variety of factors, depending upon

the kind of rule … called into question.” Id. at 28, 1982

U.S.C.C.A.N. at 206. This does not mean that all the

Senate factors always apply. See Gingles, 478 U.S. at 45

(“this list of typical factors is neither comprehensive nor

exclusive” and “there is no requirement that any

particular number of factors be proved” (quoting S. Rep.

No. 97-417, at 29, 1982 U.S.C.C.A.N. at 206)). Section 2’s

text mandates examination of “the totality of

circumstances,” 52 U.S.C. § 10301(b), and the Senate

factors

simply

enumerate

possibly

relevant

8

circumstances.

C. Properly Read, Section

Constitutional Issues.

2

Raises

No

Properly read, Section 2 raises none of the

constitutional issues Petitioners attempt to inject into

this case. Though the Fifteenth Amendment prohibits

only intentional discrimination, this Court’s decisions

“foreclose any argument that Congress may not,

pursuant to [the Amendment], outlaw voting practices

that are discriminatory in effect.” City of Rome, 446 U.S.

at 173. That is exactly what Section 2 does. It does not

impose liability “based solely on a showing of a statistical

disparity.” Inclusive Cmtys., 576 U.S. at 540. Rather,

the plaintiff must “point to a defendant’s policy or

policies causing that disparity.” Id. at 542.

8

Given Section 2’s totality-of-circumstances element, the Senate

factors’ nonexclusive nature, and their basis in precedent, the

factors’ provenance as legislative history matters little. Contra

Brnovich Br. 33. This Court regularly applies the Senate factors in

Section 2 cases. See, e.g., LULAC, 548 U.S. at 426.

34

Socioeconomic or other inequalities may interact with

the policy, but the challenged election policy itself must

help transform those differences into disparate

opportunities to participate in the political process.

Defendants are responsible not for preexisting societal

discrimination, but for their decisions to superimpose

laws that erect barriers to minority voting by

exacerbating existing discrimination. Section 2 thus

“protects defendants from being held liable for racial

disparities they did not create.” Id.

By requiring courts to consider the totality of

circumstances, Section 2 also gives defendants “leeway

to state and explain the valid interest served by their

policies.” Id. at 541. This leeway, combined with the

statute’s causation requirement, ensures that

governments need not use race “in a pervasive way” or

adopt quotas. Id. at 542.9 However, the Constitution

does not mandate that governments be given the benefit

of all doubt. It requires only that they “be allowed to

maintain a policy if they can prove it is necessary to

achieve a valid interest.” Id. at 541 (emphasis added).

Petitioners nevertheless insist that any reading of

Section 2 other than theirs substantively expands the

Fifteenth Amendment’s meaning, in violation of City of

Boerne v. Flores, 521 U.S. 507 (1997). ARP Br. 39-41;

Brnovich Br. 26-28. That is wrong. While Fourteenth

Amendment legislation must exhibit “congruence and

proportionality” between injury and remedy, City of

9

With these safeguards in place, Section 2 does not “prioritize race”

and so does not raise Fourteenth Amendment concerns, either.

ARP Br. 41; see Brnovich Br. 26-27.

35

Boerne, 521 U.S. at 520, this Court recognizes that

Congress may pass prohibitions under the Fifteenth

Amendment as long as they are “rational means [of]

effectuat[ing]” the Amendment under McCulloch v.

Maryland. Katzenbach, 383 U.S. at 324; see City of

Rome, 446 U.S. at 177; Shelby Cnty., 570 U.S. at 550-51,

556. In any event, even if City of Boerne’s standard

applied, but see Tennessee v. Lane, 541 U.S. 509, 558

(2004) (Scalia, J., dissenting) (noting the standard’s lack

of any “demonstrable basis in the text of the

Constitution”), Section 2 is a congruent and proportional

mechanism for enforcing the Fifteenth Amendment’s

broad mandate. Section 2 places the burden of proof on

plaintiffs, focuses on local conditions, and tailors liability

to laws that cause discriminatory results. Given these

safeguards, Section 2 raises none of the constitutional

issues invented by Petitioners.

Petitioners also invoke the Elections Clause and

states’ role in regulating the times, places, and manner

of federal elections. ARP Br. 22-23, 35; Brnovich Br. 2829. But, again, the VRA “was passed pursuant to

Congress’ authority under the Fifteenth Amendment,”

and “the Reconstruction Amendments by their nature

contemplate some intrusion into areas traditionally

reserved to the States.” Lopez v. Monterey Cnty., 525

U.S. 266, 282 (1999). In any event, the same Elections

Clause that giveth to the states may taketh away when

Congress acts. The Clause “embrace[s] authority to

provide a complete code for congressional elections.”

Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S.

1, 8-9 (2013) (quotation marks omitted). Congress has

the authority not only to regulate OOP voting and ballot

36

collection directly, but also to prohibit discrimination in

these practices through the VRA.

II. No Petitioner Has Standing to Appeal the

Decision on the OOP Policy, Which the Court

Below Correctly Held Violates Section 2.

Because the OOP Policy is just that—a policy,

promulgated under Arizona law by the Secretary of

State—whether to continue to defend it in court is up to

her. Under Arizona law, the Attorney General cannot

appeal the decision below against her wishes. Nor do

ARP Petitioners have standing.

Even if any Petitioner had standing, the court below

correctly found that the OOP Policy violates Section 2.

The Policy results in minority voters having less

opportunity to vote, without justification. As the State’s

chief elections officer, the Secretary is empowered to

determine if any legitimate interest justifies the Policy,

and she has determined there is none.

A. Petitioners Lack Standing to Appeal the

Decision Below on the OOP Policy.

Petitioners lack standing to appeal the en banc

court’s ruling on the OOP Policy. Arizona law provides

that Attorney General Brnovich may not pursue this

appeal against the wishes of the Secretary—either in his

capacity as Attorney General or on behalf of the State.

ARP Petitioners also lack standing because they have

failed to demonstrate any particularized stake in the

outcome of the dispute.

1. The OOP Policy is not a legislative enactment; it

is a creature of the Elections Procedure Manual. That

37

Manual is promulgated by the Secretary, who is charged

under Arizona law with using her discretion to

implement rules for counting ballots in the Manual. See

supra at 6. Although her predecessor supported the

OOP Policy, Respondent Hobbs ran for office in 2018 on

a platform of removing barriers that made it harder for

Arizona’s minority citizens to have their votes counted.

See supra at 4-5. The voters of Arizona elected

Respondent Hobbs to do just that, and her decision not

to appeal the decision on the OOP Policy reflects her

mandate from the voters.

This Court looks to state law to determine who has

standing to represent Arizona and its officials in federal

court. See, e.g., Va. House of Delegates v. Bethune-Hill,

139 S. Ct. 1945, 1951-52 (2019). And under clearly

established Arizona law, Brnovich Petitioners have no

authority to appeal the decision on the OOP Policy. In

fact, the Arizona Supreme Court has held that the

Attorney General is prohibited from appealing on behalf

of another state official who does not wish to appeal.

In Santa Rita Mining Co. v. Department of Property

Valuation, 530 P.2d 360, 363 (Ariz. 1975), the Arizona

Supreme Court held that the Attorney General could not

appeal a tax suit when the Director of Property

Valuation did not wish to appeal. The court

acknowledged that Arizona law “contemplates that the

Attorney General act as the legal representative of the

people; so that, whenever the State is a party to a

law[s]uit, it is the Attorney General who must act as its

lawyer.” Id. at 362. However, the Attorney General

lacked authority “to exercise the power of discretion

placed by the Constitution and applicable statutes in

38

other executive and administrative officers.” Id. The

court therefore concluded that “the Attorney General is

not the proper person to decide the course of action

which should be pursued by another public officer, nor

should he be allowed to maintain a lawsuit at his own

instigation under the cloak and in the guise that the

action is by the State of Arizona in order to accomplish

the same result.” Id. (quotation marks omitted)

(emphasis added). Thus, Attorney General Brnovich

lacks authority to appeal the decision below against the

wishes of Respondent Hobbs—either in his own right or

“in the guise that the action is by the State of Arizona.”

Id.

2. ARP Petitioners also lack standing. They do not

represent the State in any capacity. See Karcher v. May,

484 U.S. 72, 77-78, 81 (1987). Nor do they have any role

in formulating or enforcing the OOP Policy. See

Hollingsworth v. Perry, 570 U.S. 693, 707 (2013). Like

the Hollingsworth petitioners, ARP Petitioners have no

particularized stake in the appeal because the decision

below “ha[s] not ordered them to do or refrain from

doing anything.” Id. at 705. And like the Wittman

petitioners, ARP Petitioners have failed to present

evidence that they have suffered an injury-in-fact from

the ruling. See Wittman v. Personhuballah, 136 S. Ct.

1732, 1737 (2016). ARP Petitioners are quintessential

“concerned bystanders,” whose interest in this litigation

is indistinguishable from the general interest of every

citizen in Arizona. See Hollingsworth, 570 U.S. at 707.

The Court therefore must dismiss the petition for

lack of standing on the OOP Policy.

39

B. The OOP Policy Violates Section 2.

Even if any Petitioner had standing to defend the

OOP Policy on appeal, that defense fails on the merits.

Plaintiffs easily met their burden to show that the OOP

Policy “results in a denial or abridgment of the right of

any citizen of the United States to vote.” 52 U.S.C.

§ 10301(a). Under either the circuits’ test or the United

States’ proposed test, plaintiffs demonstrated that

minority voters had less ability to vote; the OOP Policy

was a but-for cause of that lesser ability; and the Policy

was unjustified. Respondent Hobbs focuses here on the

United States’ test. See U.S. Br. 14-25.

1. On the first prong of the test, plaintiffs

demonstrated that they had less ability to vote. There

was “[e]xtensive and uncontradicted” evidence that

minority voters in Arizona were disproportionately

subject to vote denial by the OOP Policy. JA618. Across

Arizona, minority voters were twice as likely as white

voters to have their ballots thrown out under the OOP

Policy. JA594-95; see JA 332-33, 617. In Pima County,

Hispanic voters’ rate of OOP ballots was 250% of white

voters’ rate, and the comparable figures were 180% for

African-Americans and 174% for Native American

voters. JA595; see id. (similar disparities in Maricopa

County).

In arguing that no disparity in ability to vote exists,

the United States misapplies its own standard to the

facts. The United States faults plaintiffs for failing to

“demonstrate that minority voters are less able to

identify and appear at the proper precinct … let alone

that they are less able to vote once the multiple other

40

accessible (and much more popular) voting methods

Arizona affords are considered.” U.S. Br. 26.

As to the first charge, plaintiffs did show that

minority voters were less able to identify and appear at

the proper precinct due to unusually frequent and

confusing changes to polling-place locations in minority

neighborhoods. JA590-93. Indeed, African-American

and Hispanic voters in Arizona experienced 30% more

instability in their polling-place sites than white voters.

JA590. Chief Judge Thomas described Arizona’s pollingplace locations as “like the changing stairways at

Hogwarts, constantly moving and sending everyone to

the wrong place.” JA590 (quotation marks omitted).

As to the second charge, the availability of other

voting methods cannot excuse a method that causes

discriminatory results. For one thing, voting methods

are not necessarily equal substitutes. To wit, “[m]ail-in

voting involves a complex procedure that cannot be done

at the last minute” and “deprives voters of the help they

would normally receive in filling out ballots at the

polls”—particularly when considered in light of the

ballot-collection statute also at issue here. Veasey v.

Abbott, 830 F.3d 216, 255 (5th Cir. 2016) (en banc).

But regardless of whether Arizona offers other

voting methods, the United States’ argument ignores

that any voter who appears at the wrong precinct on

Election Day and casts a provisional ballot is guaranteed

at that point to have her vote denied. Under the OOP

Policy, when voters cast ballots outside their assigned

precinct, their ballots are discarded—even when voters’

assigned precincts have nothing to do with their

eligibility to vote, like in contests for nearly all federal

41

officers, “all statewide officers … and statewide

propositions,” and many county and local officers and

propositions. JA586.

This Court has long recognized that “the right to

have one’s vote counted has the same dignity” under the

Constitution as “the right to put a ballot in a box.” Gray

v. Sanders, 372 U.S. 368, 380 (1963) (quotation marks

omitted). The right to have one’s ballot counted is

guaranteed by the VRA’s text and is foundational to this

Court’s vote-dilution jurisprudence. See 52 U.S.C.

§ 10310(c)(1). If anything, it applies even more strongly

to vote-denial cases: Refusing to count ballots at all is a

more direct means of infringing the right to vote than

refusing to give votes their full weight. See Reynolds v.

Sims, 377 U.S. 533, 554-55 & n.29 (1964).

The United States agrees that the district court

erred by concluding that the OOP Policy’s impact was

simply too small to sustain a Section 2 claim. See U.S. Br.

29. Like Petitioners, the district court fixated on the

declining number of OOP ballots cast in Arizona from

2008 to 2016, and the declining percentage of OOP

ballots as a share of all ballots. JA297-300; Brnovich Br.

34-35; ARP Br. 7-8, 25. But as the en banc court correctly

determined (and the United States agrees, see U.S. Br.

29), the district court’s focus on the “small” number of

voters affected was wrong. JA619-21. Section 2 protects

“the right of any citizen of the United States to vote,” 52

U.S.C. § 10301(a) (emphasis added). Thus, “if a polling

place denies an individual minority voter her right to

vote based on her race or color, Section 2 is violated

based on that single denial.” JA619; accord Holder, 512

U.S. at 918 (Thomas, J., concurring in the judgment). For

42

vote-denial claims, “[t]he number of minority voters

adversely affected, and the mechanism by which they

are affected, may vary considerably.” JA619.10

2. On the second prong, the court below correctly

held that requiring plaintiffs to show that the OOP

Policy itself caused minority voters to cast ballots at the

wrong precincts was error. JA622. Obviously, a policy

instructing election officials to throw out a class of

ballots will never be the cause of citizens casting that

type of ballot. No voter would go to the polls knowing

that her ballot would not be counted. Yet this absurdity

is precisely what the United States’ proposed

proximate-cause requirement invites. Suppose, for

example, that the policy at issue was to throw out the

OOP ballots of minority but not white voters. Clearly

that would be unlawful, but no plaintiff could ever show

that the policy itself caused any minority voter to vote

OOP. The same would be true of any restrictive rules

governing ballot counting. The United States’ proposed

proximate-cause standard would impose an impossibly

high burden.

10

Even if it were appropriate to apply some de minimis threshold

to a Section 2 claim, Arizona’s OOP Policy clears that bar. Arizona

threw out 38,335 OOP ballots from 2008 to 2016. JA588. That

includes 3,709 OOP ballots in 2016 alone. JA619-20. Minority votes

are overrepresented in those discarded ballots by two-to-one. JA19;

see JA332-33, 594-96, 617. Petitioners try to downplay the denial of

thousands of votes by comparing the OOP ballot number to the

number of all ballots cast statewide. Brnovich Br. 34-35; ARP Br. 78, 25. But the 3,709 rejected OOP ballots from Arizona’s 2016

general election far exceeds the 537 votes that famously decided the

2000 presidential election in Florida. JA621.

43

Section 2’s but-for causation requirement is the

proper standard and, as the court below found, is clearly

met here. “The challenged practice—not counting OOP

ballots [at all]—results in ‘a prohibited discriminatory

result’; a substantially higher percentage of minority

votes than white votes are discarded.” JA622 (quotation

marks omitted). These disparities would not have

occurred but for the OOP Policy and but for the voters’

race.

3. On the third prong, the en banc court relied

heavily—as the United States suggests, see U.S. Br. 2425—on the State’s justification for the OOP Policy. The

court observed that “[t]here is no finding by the district

court that would justify, on any ground, Arizona’s policy

of entirely discarding OOP ballots. There is no finding

that counting or partially counting OOP ballots would

threaten the integrity of Arizona’s precinct-based

system. Nor is there a finding that Arizona has ever

sought to minimize the number of OOP ballots.” JA655.

“The only plausible justification for Arizona’s OOP

[P]olicy,” the en banc court found, “would be the delay

and expense entailed in counting OOP ballots.” JA656.

But the district court never made any findings to that

effect. In fact, the district court expressly found that

“[c]ounting OOP ballots is administratively feasible.” Id.

(quotation marks omitted).

Although the United States attempts to manufacture

new justifications for the OOP Policy, U.S. Br. 27,

Respondent Hobbs has refused to defend the Policy

precisely because it has no legitimate justification. See

supra at 5. As she has determined through consultation

with election officials from every Arizona county, ballots

44

cast OOP do not present any issue for election

administration; they can and should be counted. That the

great majority of Arizona counties have transitioned to

vote-center or hybrid models, in which votes routinely

are cast outside voters’ assigned precincts and then

counted, likewise demonstrates that there is no

legitimate interest in keeping the precinct-based

system.

Thus, even applying the United States’

reformulation of the results test, the en banc court

correctly determined that Arizona’s OOP Policy violates

Section 2. Accordingly, if the Court concludes that any

Petitioner has standing on the OOP Policy, it should

affirm.

III. The Court Below Correctly Held that Arizona’s

Statute Criminalizing Non-Fraudulent Ballot

Collection Violates Section 2 and the Fifteenth

Amendment.

The court below also correctly held that H.B. 2023—

which makes mere knowing possession of a ballot by a

person who is not a family or household member or a

caregiver a felony punishable by up to two years in

prison and a $150,000 fine—violates both Section 2 and

the Fifteenth Amendment.

A. H.B. 2023 Violates Section 2’s Results Test.

Again, even under the United States’ reformulated

Section 2 test, plaintiffs demonstrated that H.B. 2023

resulted in less ability for minorities to vote than other

voters, was a but-for cause of that lesser ability, and was

unjustified.

45

1. On the test’s first prong, uncontested evidence

showed that H.B. 2023 resulted in minority voters’

having less ability to vote than others. JA659-60. The

United States ignores record evidence of H.B. 2023’s

discriminatory results and faults plaintiffs for not

proffering evidence that Section 2 does not require.

The United States argues that plaintiffs offered only

“circumstantial and anecdotal evidence” that minorities

were more likely to use ballot collection to vote. U.S. Br.

27 (quotation marks omitted). In fact, plaintiffs

presented extensive—and uncontested—evidence that

third parties collected thousands of early ballots from

minority voters and, as the district court found, that

white voters did not similarly rely on third-party ballot

collection. JA329-30, 659-60. This evidence was not

“selective anecdotes,” contra Brnovich Br. 41, but direct,

credible testimony from third-party ballot collectors and

witnesses who personally supervised or observed thirdparty ballot collection. JA661. Plaintiffs also showed that

minority voters in Arizona lack access to home mail

services at dramatically higher rates than white

voters—for instance, outside of Maricopa and Pima

Counties, 86% of non-Hispanic whites and 80% of

Hispanics, but only 18% of Native Americans, have

access to home mail service. JA124, 183.

2. On the second prong, plaintiffs showed that H.B.

2023 caused minorities to have less ability to vote.

Individual voters were not required to testify that H.B.

2023 “would make it significantly more difficult to vote.”

Contra U.S. Br. 28 (quoting JA331). Nothing in Section

2 requires testimony from individual voters that a

challenged law will make voting “significantly more

46

difficult.” The United States ignores the aforementioned

evidence of minority voters’ disproportionate reliance on

third-party ballot collection—i.e., undisputed evidence

that minority voters used ballot collectors more

frequently than white voters out of practical necessity.

And because those minority voters were using thirdparty ballot collection for wholly legitimate reasons,

H.B. 2023’s extension of the criminal code to encompass

non-fraudulent ballot collection was entirely responsible

for their lesser ability to vote.

3. On the third prong, the en banc court used the

totality-of-circumstances analysis both to evaluate the

State’s justifications for the law and to smoke out

discriminatory intent—exactly as the United States

proposes. U.S. Br. 16.

The evidence showed that Arizona lawmakers were

well aware that H.B. 2023 would hinder minorities’

ability to vote: Proponents of H.B. 2023 made explicit

racial appeals in promoting the bill; Senator Shooter,

who introduced the bill, had previously introduced a

similar law limiting, but not criminalizing or otherwise

banning, third-party ballot collection that was

“motivated by the high degree of racial polarization” in

his district; and Arizona later withdrew a preclearance

request for that prior version of the law because of

evidence that it “intentionally targeted Hispanic

voters.” JA663-64 (quotation marks omitted).

By contrast, no evidence supported the State’s

“justifications” for the law. Though the Carter-Baker

Commission recommended limits on third-party ballot

collection, these recommendations were meant to

“reduce the risks of fraud and abuse in absentee voting,”

47

JA669 (quotation marks omitted)—a purpose that

Arizona’s existing criminal prohibition of fraudulent

third-party ballot collection already fulfilled, and that

H.B. 2023, which prohibits non-fraudulent third-party

ballot collection, does not advance. Nor was there any

reason to conclude that non-fraudulent third-party

ballot collection in Arizona presents a “risk of fraud or

abuse,” when despite the “unique” and “long-standing”

role of third-party ballot collection in Arizona,

“[e]vidence in the record show[ed] that Arizona has

never, in its long history of third-party ballot collection,

found a single case of fraud.” JA689.

For the same reasons, other states’ restrictions on

third-party ballot collection, and incidents of ballotcollection fraud in North Carolina, Brnovich Br. 44, or

other states, ARP Br. 9-10, are not persuasive (which

may explain why the United States does not advance

those arguments). In any event, comparison to other

states is irrelevant. By making the mere possession of a

single ballot by persons other than family or household

members or caregivers a felony punishable by up to two

years in prison and a $150,000 fine, H.B. 2023 is an

extreme outlier.11

B. H.B. 2023 Violates Section 2’s Intent Test and

the Fifteenth Amendment.

The en banc court also held that “racial

discrimination was a motivating factor in enacting H.B.

11

North Carolina is the only other state that criminalizes thirdparty possession of a single absentee ballot as a felony punishable

by up to two years’ imprisonment. See N.C. Gen. Stat. Ann. §§ 163226.3(a)(5), 15A-1340.17(c)-(d).

48

2023” and that Arizona did not offer evidence showing

“that H.B. 2023 would have been enacted without the

motivating factor of racial discrimination,” in violation of

Section 2 and the Fifteenth Amendment. JA679-80. This

decision correctly rested on application of the Arlington

Heights framework to the district court’s findings that

Arizona has a “long history of race-based voting

discrimination”; “the Arizona legislature [made]

unsuccessful efforts to enact less restrictive versions of

[H.B. 2023] when preclearance was a threat”; “false,

race-based claims of ballot collection fraud [were] used

to convince Arizona legislators to pass H.B. 2023”; H.B.

2023 targeted “the substantial increase in American

Indian and Hispanic voting attributable to ballot

collection”; and “racially polarized voting” exists in

Arizona. JA679.

Petitioners fixate on the en banc court’s reference to

the “cat’s paw” theory of liability. JA673; see Brnovich

Br. 45-47; ARP Br. 46-47; JA677. But the roots of “cat’s

paw” liability in agency law (and whether it applies to

“independent, co-equal” legislators, Brnovich Br. 46) are

irrelevant because “[d]etermining whether invidious

discriminatory purpose was a motivating factor

demands a sensitive inquiry into such circumstantial and

direct evidence of intent as may be available.” Arlington

Heights, 429 U.S. at 266. H.B. 2023’s legislative history

was just one of many reasons the en banc court deemed

the law racially motivated.12 See id. at 266-68.

12

For instance, the en banc court cited the district court’s findings

on Arizona’s prior legislative efforts to restrict third-party ballot

collection, as well as the “Arizona legislature[’s] … long history of

race-based discrimination, disenfranchisement, and voter

49

ARP Petitioners insist that some legislators’

“sincere belief” in nonexistent fraud must be credited,

and evidence showing the racial animus that created

that “sincere belief” ignored. ARP 45-47. But ignoring

this evidence would run counter to Arlington Heights’

instruction that discriminatory purpose need not be the

“sole[]” or even “primary” motive for a law to run afoul

of Section 2 and the Fifteenth Amendment, 429 U.S. at

265-66, as well as Congress’s recognition that

“[d]iscrimination today is more subtle than the visible

methods used in 1965,” H.R. Rep. No. 109-478, at 6

(2006), as reprinted in 2006 U.S.C.C.A.N. 618, 620.

Petitioners also argue that the court’s analysis of

H.B. 2023 violated this Court’s decision in Crawford v.

Marion County Election Board, 553 U.S. 181 (2008).

Brnovich Br. 47-49; ARP Br. 48-49. Not so. Crawford is

not a Section 2 or Fifteenth Amendment case, and its

controlling opinion does not address the standards for

discriminatory motive at issue here. See Crawford, 553

U.S. at 189-91 (plurality opinion). Crawford does not

hold that racial animus can never be inferred from a law

enacted to combat non-existent fraud, or that a state’s

purported interest in prophylactically preventing fraud

displaces the “intensely local appraisal” Section 2

mandates. And Crawford’s consideration of evidence of

out-of-state fraud has no bearing on H.B. 2023, which

outlaws non-fraudulent ballot collection. The incident of

suppression.” JA600-08, 674-75. ARP Petitioners’ claim that the

latter evidence is too old to be probative, ARP Br. 49, ignores the

en banc court’s reliance on evidence (see JA635-43) that was

“reasonably contemporaneous” with H.B. 2023, McCleskey v.

Kemp, 481 U.S. 279, 298 n.20 (1987).

50

third-party ballot-collection fraud in North Carolina, for

instance, would have been illegal under Arizona laws

independent of H.B. 2023. JA690. The court below did

not question the legitimacy of these laws, nor did it

question Arizona’s interest in prohibiting fraudulent

ballot collection, even given the absence of any evidence

of third-party ballot-collection fraud in Arizona.

Although Petitioners accuse the court of “improperly

conflat[ing] partisan motivations with racial ones,”

Brnovich Br. 42 (citing JA329), “racial identification is

highly correlated with political affiliation,” Easley v.

Cromartie, 532 U.S. 234, 243 (2001). The mere invocation

of partisanship in defense of H.B. 2023 does not inoculate

Arizona against VRA liability when the weight of the

evidence shows that the law was racially motivated. See

Cooper v. Harris, 137 S. Ct. 1455, 1473 & n.7 (2017); cf.

LULAC, 548 U.S. at 440 (on vote-dilution claim under

Section 2, finding violation “[e]ven if we accept the

District Court’s finding that the State’s action was taken

primarily for political, not racial, reasons”).

Finally, Petitioners and the United States maintain

that the en banc court exceeded the scope of clear-error

review. Brnovich Br. 49-50; ARP Br. 43-45; U.S. Br. 3235. But the court neither set aside any of the district

court’s findings on discriminatory intent, Brnovich Br.

49, nor “weighed the evidence” of discriminatory intent

“differently,” Anderson v. City of Bessemer, 470 U.S.

564, 574 (1985). Instead, the en banc court concluded that

the district court clearly erred by “discounting the

importance” of undisputed evidence on the historical

background of racial discrimination and voter

suppression in Arizona (both generally and through

51

restrictions on third-party ballot collection), the specific

legislative history of H.B. 2023, and the law’s disparate

impact on minority voters in Arizona. JA678. The en

banc court thus found that “on the entire evidence” of

H.B. 2023’s racial motivations, it was “left with the

definite and firm conviction that a mistake” had been

committed by the district court. Anderson, 470 U.S. at

573 (quotation marks omitted); see JA678. That decision

was correct.

CONCLUSION

The Court should affirm the judgment below.

Respectfully submitted,

JESSICA RING AMUNSON

Counsel of Record

SAM HIRSCH

TASSITY S. JOHNSON

NOAH B. BOKAT-LINDELL

ELIZABETH B. DEUTSCH

JONATHAN A. LANGLINAIS

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

jamunson@jenner.com

January 13, 2021