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

Supreme Court briefJan 19, 2021

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Nos. 19-1257 & 19-1258

IN THE

Supreme Court of the United States

MARK BRNOVICH, Attorney General of Arizona, et al.,

Petitioners,

DEMOCRATIC NATIONAL COMMITTEE, et al.,

Respondents.

ARIZONA REPUBLICAN PARTY, et al.,

Petitioners,

DEMOCRATIC NATIONAL COMMITTEE, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE LEADERSHIP CONFERENCE

ON CIVIL AND HUMAN RIGHTS, THE LEADERSHIP

CONFERENCE EDUCATION FUND, AND 52 OTHER

PUBLIC-INTEREST ORGANIZATIONS, AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

ARPIT K. GARG

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 663-6000

LASHAWN WARREN

MICHAEL ZUBRENSKY

LEIGH CHAPMAN

THE LEADERSHIP CONFERENCE

ON CIVIL AND HUMAN RIGHTS

1620 L Street, NW, Suite 1100

Washington, D.C. 20036

(202) 466-3311

DEBO P. ADEGBILE

Counsel of Record

MARISSA MEDINE

NELSON CASTAÑO

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, N.Y. 10007

(212) 295-6717

debo.adegbile@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................... ii

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

SUMMARY OF ARGUMENT ......................................... 2

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

SECTION 2 HAS A VITAL CONTINUING

ROLE IN PROTECTING MINORITY VOTERS’

EQUAL ACCESS TO THE BALLOT ................................ 5

A. Voting Rights Have Been Increasingly

Under Attack in the Last Decade ...................... 5

B. Recent Attacks On The Right To Vote

Disproportionately Affect Minority

Voters ................................................................... 10

II. THIS COURT SHOULD CONTINUE TO

INTERPRET SECTION 2 TO EMPOWER

COURTS TO PROTECT AGAINST THE

PERSISTENT AND ADAPTIVE PROBLEM OF

DISCRIMINATION IN VOTING..................................... 17

A. For Generations, This Court Has

Protected Democracy By Striking

Down Barriers To Participation ....................... 17

B. Courts Can And Must Be Vigilant To

Combat Discrimination In Voting .................... 22

C. The Court Should Continue To Interpret

Section 2 To Empower Courts To

Combat Discrimination In Voting ...................... 25

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

APPENDIX: LIST OF AMICI ..................................... 1a

TABLE OF AUTHORITIES

CASES

Page(s)

Allen v. State Board of Elections, 393 U.S. 544

(1969) .............................................................................. 2

Baker v. Carr, 369 U.S. 186 (1962) .................................. 20

Bartlett v. Strickland, 556 U.S. 1 (2009) .......................... 3

Brown v. Board of Education, 347 U.S. 483

(1954) ............................................................................ 17

Chisom v. Roemer, 501 U.S. 380 (1991)........................ 2, 3

Colegrove v. Green, 328 U.S. 549 (1946) ......................... 20

Dougherty County Board of Education v.

White, 439 U.S. 32 (1978) ............................................. 4

Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020).... 11, 24, 25

Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) .............. 28

Frank v. Walker, 17 F. Supp. 3d 837 (E.D. Wis.

2014) ....................................................................... 27, 28

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............. 19, 20

Hunter v. Underwood, 471 U.S. 222 (1985).................... 21

League of United Latin American Citizens v.

Perry, 548 U.S. 399 (2006) ......................................... 23

Luft v. Evers, 963 F.3d 665 (7th Cir. 2020) .................... 11

Nixon v. Condon, 286 U.S. 73 (1932) .............................. 18

Nixon v. Herndon, 273 U.S. 536 (1927) .......................... 17

North Carolina State Conference of NAACP v.

McCrory, 831 F.3d 204 (4th Cir. 2016) .............. 23, 24

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Ohio State Conference of NAACP v. Husted,

768 F.3d 524 (6th Cir. 2014) ...................................... 14

One Wisconsin Institute, Inc. v. Thomsen,

198 F. Supp. 3d 896 (W.D. Wis. 2016) ...................... 11

Reno v. Bossier Parrish School Board,

528 U.S. 320 (2000) ....................................................... 4

Shelby County v. Holder, 570 U.S. 529 (2013)............... 24

Smith v. Allwright, 321 U.S. 649 (1944) ................... 18, 19

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

(1966) ............................................................................ 21

Terry v. Adams, 345 U.S. 461 (1953) .............................. 19

Thornburg v. Gingles, 478 U.S. 30 (1986) ...................... 26

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

2016) ..................................................... 11, 25, 26, 27, 28

Veasey v. Perry, 71 F. Supp. 3d 627 (S.D. Tex.

2014) ............................................................................. 11

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ....................... 21

STATUTORY PROVISIONS

52 U.S.C. § 20507 ................................................................. 6

Pub. L. No. 89-110, 79 Stat. 437 (1965) ........................... 21

Pub. L. No. 91-285, 84 Stat. 314 (1970) ........................... 22

Pub. L. No. 94-73, 89 Stat. 402 (1975) ............................. 22

Pub. L. No. 97-205, 96 Stat. 131 (1982) ........................... 22

Pub. L. No. 102-344, 106 Stat. 921 (1992) ....................... 22

TABLE OF AUTHORITIES—Continued

Page(s)

Pub. L. No. 109-246, 120 Stat. 577 (2006) ....................... 22

2011 Wis. Act 23 ................................................................. 27

LEGISLATIVE MATERIALS

Hearing on Protecting the Right to Vote: Best

and Worst Practices Before the Subcommittee on Civil Rights & Civil Liberties of

the House Committee on Oversight & Reform, 116th Cong. 10 (Comm. Print 2019)

(statement of Dale Ho), available at

https://bit.ly/2LjlfhC .................................................. 12

OTHER AUTHORITIES

Barreto, Matt, et al., The Disproportionate Impact of Voter-ID Requirements on the Electorate—New Evidence from Indiana,

42 Politics & Political Sci. 111 (2009) ....................... 16

Berman, Ari, Republicans Are Trying to Kick

Thousands of Voters Off the Rolls During

the Pandemic, Mother Jones (Apr. 14,

2020), https://bit.ly/2LqoP9W ............................... 6, 13

Bhutta, Neil, et al., Disparities in Wealth by

Race and Ethnicity in the 2019 Survey of

Consumer Finances, Board of Governors

of the Federal Reserve System (Sept. 28,

2020), https://bit.ly/3oFtKCn .................................... 10

Brater, Jonathan, et al., Purges: A Growing

Threat to the Right to Vote, Brennan Center for Justice (2018), https://bit.ly/

3mY1lpy ..................................................................... 6, 7

TABLE OF AUTHORITIES—Continued

Page(s)

Carlisle, Madeleine & Abigail Abrams, The Supreme Court’s Alabama Ruling Could

Disenfranchise Thousands of High Risk

Voters, Time (Oct. 23, 2020), https://bit.ly/

3nyyIQ3 ......................................................................... 7

Center for Global Policy Solutions, The Racial

Wealth Gap: Asian Americans and Pacific

Islanders (Apr. 2014), https://bit.ly/

2XvUOIm .................................................................... 10

Corasaniti, Nick, et al., The Times Called Officials in Every State: No Evidence of Voter

Fraud, N.Y. Times (Nov. 19, 2020),

https://nyti.ms/3baEnJN ............................................. 9

Currier, Erin & Sheida Elmi, The Racial

Wealth Gap and Today’s American

Dream,

PEW

(Feb.

16,

2018),

https://bit.ly/3oen9yA ................................................ 10

Derysh, Igor, After Democrats Flip State,

Georgia Moves to Shut Down Early Voting

Locations Ahead of Senate Runoff, Salon

(Dec. 9, 2020), https://bit.ly/3om2nxi ....................... 15

Derysh, Igor, GOP Vows to Probe Georgia

Election “Catastrophe” in Minority Areas,

Dems Say it Was “No Accident,” Salon

(June 10, 2020), https://bit.ly/350i2dL...................... 14

Election 2012: Voting Laws Roundup, Brennan

Center for Justice (Oct. 11, 2012),

https://bit.ly/34ZIG6D ................................................. 5

TABLE OF AUTHORITIES—Continued

Page(s)

Emerson, Thomas I., Malapportionment and

Judicial Power, 72 Yale L.J. 64 (1962) .................... 20

Ford, Matt, The Entirely Preventable Battles

Raging Over Voting Rights, The Atlantic

(Apr. 14, 2017), https://bit.ly/2KI6zc9 ...................... 26

Fried, Hannah, The Problem of Voter Purging—and Where We Go from Here, The

Leadership Conference on Civil & Human

Rights (Jan. 30, 2020), https://bit.ly/

359Kudq ......................................................................... 7

Gruber-Miller, Stephen & Zachary Oren Smith,

Iowa Counties Can’t Set Up Drop Box Systems for Absentee Ballots, Secretary of

State Says, Des Moines Register (Aug. 26,

2020), https://bit.ly/3hub7P6 ....................................... 8

Harmon, Lauren, et al., The Health of State

Democracies, Center for American Progress

Action

Fund

(July

2015),

https://bit.ly/3nhzBwh ............................................... 13

Hood III, M.V. & Charles S. Bullock III, Worth

a Thousand Words?: An Analysis of Georgia’s

Voter

Identification

Statutes,

36 Am. Pol. Research 555 (2008) .............................. 16

Hajnal, Zoltan, et al., Voter Identification Laws

and the Suppression of Minority Votes,

79 J. of Pol. 363 (2017) ................................................ 16

Jaffe, Louis L., Was Brandeis an Activist? The

for

Intermediate

Premises,

80 Harv. L. Rev. 986 (1967)....................................... 20

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Keyssar, Alexander, U.S. Commission on Civil

Rights Meeting, Part 2, C-SPAN (Aug. 18,

2017), https://bit.ly/3nF4laG ............................... 22, 23

Killough, Ashley, et al., Texas Governor Limits

Election Drop Boxes to One Per County in

Sprawling State, CNN (Oct. 5, 2020),

https://cnn.it/3nATs9Y ................................................ 7

Klain, Hannah, et al., Waiting to Vote, Brennan

Center for Justice (June 3, 2020),

https://bit.ly/3b3xjyq .............................................. 7, 15

Lewis, John, Together, You Can Redeem the

Soul of our Nation, N.Y. Times (July 30,

2020), https://nyti.ms/2XR1bGk ............................... 25

Levine, Zahavah & Thea Raymond-Sidel, Mail

Voting Litigation in 2020, Part IV: Verifying Mail Ballots, LawFare (Oct. 29, 2020),

https://bit.ly/3q93WyX ................................................ 8

Litt, David, Claims of ‘Voter Fraud’ Have a

Long History in America. And They Are

False, The Guardian (Dec. 4, 2020),

https://bit.ly/34YqLxb ................................................. 8

Mattise, Jonathan, Tennessee Official: Fear of

Virus Not Reason to Vote by Mail, ABC

News (May 12, 2020), https://abcn.ws/

38LepcM ........................................................................ 7

Mayer, Kenneth R., Press Release: Voter ID

Study Shows Turnout Effects in 2016 Wisconsin Presidential Election (Sept. 25,

2017), https://bit.ly/3oPPQ5g .................................... 29

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Mazzei, Patricia, Hispanics, Democrats Biggest

Groups in Florida’s List of Potential

Noncitizen Voters, Analysis Shows, Tampa

Bay Times (May 12, 2012), https://bit.ly/

2JKHRXT ................................................................... 14

Menter, Aviel, Mail Voting Litigation in 2020,

Part I: Application and Eligibility to Vote

By Mail, LawFare (Oct. 27, 2020),

https://bit.ly/3500D54 ................................................... 7

New Voting Restrictions in America, Brennan

Center for Justice (Nov. 18, 2019),

https://bit.ly/383e0U8................................................... 5

Niesse, Mark, Strict Absentee Voting Limits

Proposed After Record Georgia Turnout,

Atlanta Journal Constitution (Jan. 7, 2021),

https://bit.ly/3scrPrb .................................................... 9

Peretti, Terri, Constructing the State Action

Doctrine, 1940-1990, 35 Law & Soc. Inquiry

273 (2010) ..................................................................... 17

Pettigrew, Stephen, The Racial Gap in Wait

Times: Why Minority Precincts Are Underserved by Local Election Officials, 132

Political Sci. Quarterly 527 (Nov. 2017),

available at https://bit.ly/3bqCdFT ......................... 15

Ramakrishnan, Karthick & Farah Z. Ahmad,

Language Diversity and English Proficiency, Center for American Progress

(May 27, 2014), https://ampr.gs/3idORJF ............... 13

TABLE OF AUTHORITIES—Continued

Page(s)

Rutenberg, Jim, The Attack on Voting, N.Y.

Times Magazine (Sept. 30, 2020),

https://nyti.ms/3o56Y6N ............................................. 8

Rutenberg, Jim, et al., Trump’s Fraud Claims

Died in Court, but the Myth of Stolen Elections Lives On, N.Y. Times (Jan. 7, 2021),

https://nyti.ms/2LmVKfM........................................... 9

Statement by Texas Attorney General Greg

Abbott, (June 25, 2013), https://bit.ly/

34Z3Stm ....................................................................... 26

Stewart III, Charles, 2012 Survey of the

Performance of American Elections, MIT

(Feb. 25, 2013) ............................................................. 16

Stewart III, Charles, Voter ID: Who Has

Them? Who Shows Them?, 66 Okla. L. Rev.

21 (2013) ....................................................................... 16

Timm, Jane C., Trump’s False Fraud Claims

Are Laying Groundwork for New Voting

Restrictions, Experts Warn, NBC News

(Dec. 6, 2020), https://nbcnews.to/38RI980 ............... 8

The Leadership Conference Education Fund,

Democracy

Diverted

(Sept.

2019),

https://bit.ly/3nPvIz0 ............................................. 7, 14

United States Census Bureau, Reported Voting

and Registration, by Sex, Race and Hispanic Origin, for States (Nov. 2016),

http://bit.ly/2LSQrVd ................................................ 12

TABLE OF AUTHORITIES—Continued

Page(s)

United States Census Bureau, Reported Voting

and Registration, by Sex, Race and Hispanic Origin, for States (Nov. 2018),

http://bit.ly/2XLaYhm ............................................... 11

United States Commission on Civil Rights, An

Assessment of Minority Voting Rights Access in the United States: 2018 Statutory

Report (Sept. 2018), https://bit.ly/3ondIge ............. 13

Voting Laws Roundup 2013, Brennan Center

for

Justice

(Dec.

19,

2013),

https://bit.ly/3aYXh5V ................................................ 5

Voting Laws Roundup 2014, Brennan Center

for

Justice

(Dec.

18,

2014),

https://bit.ly/3pDHsWt ............................................ 5, 6

Voting Laws Roundup 2015, Brennan Center

for

Justice

(June

2015),

https://bit.ly/3aYby2X ................................................. 5

Voting Laws Roundup 2016, Brennan Center

for

Justice

(Apr.

18,

2016),

https://bit.ly/383BVCU ................................................ 6

Voting Laws Roundup 2017, Brennan Center

for

Justice

(May

10,

2017),

https://bit.ly/387P2mB ................................................. 6

Voting Laws Roundup 2018, Brennan Center

for

Justice

(Apr.

2018),

https://bit.ly/38QSXmH ............................................... 6

Voting Laws Roundup 2019, Brennan Center

for

Justice

(July

10,

2019),

https://bit.ly/3o6t9JH ................................................... 6

TABLE OF AUTHORITIES—Continued

Page(s)

Voting Laws Roundup 2020, Brennan Center

for

Justice

(Dec.

2020),

https://bit.ly/3rI1rVM .............................................. 5, 9

Weil, Matthew, et al., The 2018 Voting

Experience:

Polling

Place

Lines,

Bipartisan Policy Center (Nov. 4, 2019),

https://bit.ly/35vAUBz............................................... 15

Weiner, Rachel, Florida’s Voter Purge Explained, Wash. Post (June 18, 2012),

https://wapo.st/2Xdnfea............................................. 14

Wines, Michael, Wisconsin Strict ID Law Discouraged Voters, Study Finds, N.Y. Times

(Sept. 25, 2017), https://nyti.ms/3hUOvHX ............ 29

INTEREST OF AMICI CURIAE

The Leadership Conference on Civil and Human

Rights (“The Leadership Conference”) is a coalition of

over 220 organizations committed to the protection of

civil and human rights in the United States.1 It is the

nation’s oldest, largest, and most diverse civil and human rights coalition. The Leadership Conference was

founded in 1950 by three legendary leaders of the civil

rights movement—A. Philip Randolph, of the Brotherhood of Sleeping Car Porters; Roy Wilkins, of the

NAACP; and Arnold Aronson, of the National Jewish

Community Relations Advisory Council. One of the

missions of The Leadership Conference is to promote

effective civil rights legislation and policy. The Leadership Conference was in the vanguard of the movement to secure passage of the Civil Rights Acts of 1957,

1960 and 1964, the Voting Rights Act of 1965 and its

subsequent reauthorizations, and the Fair Housing Act

of 1968.

The Leadership Conference Education Fund (“The

Education Fund”) is the research, education, and communications arm of The Leadership Conference. It focuses on documenting discrimination in American society, monitoring efforts to enforce civil rights legislation, and fostering better public understanding of issues of prejudice. The Education Fund has published

studies and reports on many subjects, including voting

rights.

The parties have consented to the filing of this brief in letters on file with the Clerk. No counsel for a party authored this

brief in whole or in part, and no entity or person, other than amici

curiae, its members, and its counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

The Leadership Conference and The Education

Fund believe that a vital national interest is at stake in

this case. That national interest is the right of all citizens to vote free from discrimination and to choose

leaders that represent their interests and, by doing so,

to promote the influence of the United States throughout the world as a viable and vibrant democracy.

Several other organizations also join as signatories

to this brief. These organizations are identified and

their interests set forth in the Appendix.

SUMMARY OF ARGUMENT

Petitioners and their amici ask this Court to adopt

an interpretation of Section 2 of the Voting Rights Act

that would render that provision hopelessly ineffective

in combating the new species of vote-denial laws, i.e.,

laws that make it disproportionately more difficult for

minority voters to participate in the political process.

This Court should reject that request.

‘‘Congress enacted the Voting Rights Act of 1965

for the broad remedial purpose of ‘rid[ding] the country

of racial discrimination in voting.’’’ Chisom v. Roemer,

501 U.S. 380, 403 (1991). Recognizing that “the 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 Board of Elections, 393 U.S. 544, 565 (1969),

this Court stated that the Act, including Section 2,

“should be interpreted in a manner that provides the

broadest possible scope in combating racial discrimination,” Chisom, 501 U.S. at 403. As Justice Scalia recognized, Section 2, by “proscrib[ing] practices with discriminatory effect whether or not intentional,” “provides a powerful, albeit sometimes blunt, weapon with

which to attack even the most subtle forms of discrimination.” Id. at 406 (Scalia, J., dissenting).

I. Now is not the time to weaken Section 2. In

Bartlett v. Strickland—a recent case in this Court substantially interpreting Section 2—a plurality of this

Court recognized that “racial discrimination and racially polarized voting are not ancient history.” 556 U.S. 1,

25 (2009). “Much remains to be done to ensure that citizens of all races have equal opportunity to share and

participate in our democratic processes and traditions;

and [Section] 2 must be interpreted to ensure that continued progress.” Id.

Bartlett’s teaching remains true today. While some

discriminatory practices have been abandoned, the last

decade has witnessed many jurisdictions placing new

hurdles in front of the ballot box: hampering voter registration, limiting early and absentee voting, closing

poll locations, purging voters from the rolls, and imposing strict voter-identification requirements. And it is

reasonable to expect that such restrictions are likely to

increase in quantity and severity in the future, amidst a

litany of unsubstantiated but oft-repeated claims of

voter fraud.

These restrictions on voting disproportionately affect minority voters, and substantially so. Minority

voters, after all, disproportionately lack the resources

to satisfy increasingly demanding voting requirements,

due to the vestiges of current and past discrimination

(including state-sponsored discrimination).

The growing tide of voting restrictions that lessen

minority voters’ opportunity to participate equally in

the political process reflects the “protean strategies” of

vote denial that “led Congress to adopt the Voting

Rights Act” in the first place. Dougherty Cty. Bd. of

Educ. v. White, 439 U.S. 32, 37 n.6 (1978); see also Reno

v. Bossier Par. Sch. Bd., 528 U.S. 320, 366 (2000) (Souter, J., concurring in part, dissenting in part) (Voting

Rights Act not intended to permit jurisdictions “to

pour old poison into new bottles”).

II. Democracies are fragile and endure where society relies on voter participation as the core means by

which political disagreements are mediated at regular

intervals. This understanding underlies the respective

roles that the branches of the federal government play

to ensure that our democracy endures, matures, and

thrives. The role of the federal courts is particularly

significant because the problem of discrimination in

voting has proven to be a substantial and enduring

threat to political participation.

History teaches that the solution is vigilance. That

is, courts must be willing and able to look past formalities and to closely examine the facts and historical context, in order to ferret out discriminatory voting laws.

This Court should interpret Section 2 accordingly.

Section 2 should be capacious enough to empower

courts to consider the totality of the circumstances and,

based on that context-specific inquiry, determine

whether a particular electoral barrier crosses the line

from a mere electoral rule into one that disproportionately and unjustifiably lessens minority voters’ opportunity to participate equally in the political process.

The Voting Rights Act and its core enforcement

provision, Section 2, represent a hard-won federal embrace of a bedrock minority-inclusion principle in

American democracy. This Court should adhere to that

principle and vindicate Section 2.

ARGUMENT

SECTION 2 HAS A VITAL CONTINUING ROLE IN PROTECTING MINORITY VOTERS’ EQUAL ACCESS TO THE

BALLOT

A. Voting Rights Have Been Increasingly Under

Attack in the Last Decade

1. Between 2010 and 2020, 28 states passed new

laws or policies restricting access to the ballot. Specifically, 16 states enacted strict voter-identification laws,

12 states enacted laws or adopted policies that make it

more difficult to register and to stay registered to vote,

12 states enacted laws or adopted policies that that

make it more difficult to vote early or absentee, and 3

states created new barriers for restoring the right to

vote for people with past criminal convictions. New

Voting Restrictions in America, Brennan Center for

Justice (Nov. 18, 2019), https://bit.ly/383e0U8; Voting

Laws Roundup 2020, Brennan Center for Justice (Dec.

8, 2020), https://bit.ly/3rI1rVM.

An even larger number of voting restrictions have

been considered in state legislatures in the last decade.

In 2011 and 2012, 180 restrictive bills were considered

in 41 states. Election 2012: Voting Laws Roundup,

Brennan Center for Justice (Oct. 11, 2012),

https://bit.ly/34ZIG6D. In 2013, 92 restrictive bills

were introduced in 33 states. Voting Laws Roundup

2013, Brennan Center for Justice (Dec. 19, 2013),

https://bit.ly/3aYXh5V. And from 2014 through 2019,

state legislatures considered a total of 83, 113, 77, 99,

70, and 87 restrictive bills in each respective year. Voting Laws Roundup 2014, Brennan Center for Justice

(Dec. 18, 2014), https://bit.ly/3pDHsWt; Voting Laws

Roundup 2015, Brennan Center for Justice (June 3,

2015), https://bit.ly/3aYby2X; Voting Laws Roundup

2016, Brennan Center for Justice (Apr. 18, 2016),

https://bit.ly/383BVCU; Voting Laws Roundup 2017,

Brennan Center for Justice (May 10, 2017),

https://bit.ly/387P2mB; Voting Laws Roundup 2018,

Brennan Center for Justice (Apr. 2, 2018),

https://bit.ly/38QSXmH; Voting Laws Roundup 2019,

Brennan Center for Justice (July 10, 2019),

https://bit.ly/3o6t9JH. A significant number of these

bills—in some years, over half—were voter ID laws

and other restrictions making it harder to register to

vote by either requiring proof of citizenship or actively

reducing voter-registration opportunities. See, e.g.,

Voting Laws Roundup 2014, Brennan Center for Justice (Dec. 18, 2014), https://bit.ly/3pDHsWt; Voting

Laws Roundup 2017, Brennan Center for Justice (May

10, 2017), https://bit.ly/387P2mB.

2. In addition to the just-mentioned legislative efforts to restrict access to voting, there have also been

administrative efforts by state officials to restrict voting access.

For example, between 2014 and 2016, state officials

removed 16 million voters from voter rolls nationwide.

Brater et al., Purges: A Growing Threat to the Right to

Vote 1, Brennan Center for Justice, (2018),

https://bit.ly/3mY1lpy. Between 2016 and 2018, another 17 million names were removed. Berman, Republicans Are Trying to Kick Thousands of Voters Off the

Rolls During a Pandemic, Mother Jones (Apr. 14,

2020), https://bit.ly/2LqoP9W. And while some degree

of voter-list maintenance is appropriate and necessary

under federal law, 52 U.S.C. § 20507(a)(4), studies have

established that many purge procedures are riddled

with errors and lacking in adequate safeguards, result-

ing in thousands of voters being wrongfully removed

from the voter rolls. Brater, Purges 1-3, 6-9, supra; see

also Fried, The Problem of Voter Purging—and Where

We Go from Here, The Leadership Conference on Civil

& Human Rights (Jan. 30, 2020), https://bit.ly/359Kudq.

“Another well-documented phenomenon is the

steady increase in poll closures.” Klain et al., Waiting

to Vote 12, Brennan Center for Justice (June 3, 2020),

https://bit.ly/3b3xjyq; see also The Leadership Conference Education Fund, Democracy Diverted 10-18, The

Leadership Conference Education Fund (Sept. 2019),

https://bit.ly/3nPvIz0. Thousands of polls have closed

over the last decade. Klain, Waiting to Vote, supra.

Notably, in many jurisdictions, “polling places are being

closed faster than voters are switching to early voting.”

Id.

Most recently, in the 2020 Presidential election,

several state officials made decisions imposing onerous

burdens on voters seeking to cast their ballots. States

like Texas, for example, actively issued orders making

it more difficult for voters to deposit their mail ballots

in drop-off sites. See Killough et al., Texas Governor

Limits Election Drop Boxes to One Per County in

Sprawling

State,

CNN

(Oct.

2020),

https://cnn.it/3nATs9Y. Election officials in several

other states interpreted election statutes narrowly, in

ways that restricted whether voters could cast absentee ballots or vote curbside. See, e.g., Carlisle &

Abrams, The Supreme Court’s Alabama Ruling Could

Disenfranchise Thousands of High Risk Voters, Time

(Oct. 23, 2020), https://bit.ly/3nyyIQ3; Mattise, Tennessee Official: Fear of Virus Not Reason to Vote by Mail,

ABC News (May 12, 2020), https://abcn.ws/38LepcM;

Menter, Mail Voting Litigation in 2020, Part I: Appli-

cation and Eligibility to Vote By Mail, LawFare (Oct.

27, 2020), https://bit.ly/3500D54; Gruber-Miller &

Smith, Iowa Counties Can’t Set Up Drop Box Systems

for Absentee Ballots, Secretary of State Says, Des

Moines Register (Aug. 26, 2020), https://bit.ly/3hub7P6.

Many other state decision-makers chose not to take action to ease restrictions on voting methods that made it

more difficult for health-compromised voters to cast

their ballots safely in a pandemic. See, e.g., Levine &

Raymond-Sidel, Mail Voting Litigation in 2020, Part

IV: Verifying Mail Ballots, LawFare (Oct. 29, 2020),

https://bit.ly/3q93WyX.

3. Finally, and perhaps most concerning, there is

every reason to expect that states will continue to enact more (and likely more severe) voting restrictions—

in response to recent, baseless claims of rampant voter

fraud.

The threat of voter fraud is the most common justification for restrictive election laws and procedures.

See Litt, Claims of ‘Voter Fraud’ Have a Long History

in America. And They Are False, The Guardian (Dec.

4, 2020), https://bit.ly/34YqLxb. Yet advocates for

these restrictions have rarely (if ever) been able to

show any evidence of widespread fraud. Rutenberg,

The Attack on Voting, N.Y. Times Magazine (Sept. 30,

2020), https://nyti.ms/3o56Y6N. Still, these claims have

led to the adoption of practices like strict voter ID laws

and hasty voter purges. Id.

As this Court is well aware, many powerful voices

have alleged widespread voter fraud in the 2020 general election. See, e.g., Timm, Trump’s False Fraud

Claims Are Laying Groundwork for New Voting Restrictions, Experts Warn, NBC News (Dec. 6, 2020),

https://nbcnews.to/38RI980. These allegations have

been rejected by election officials from every state, who

have said they do not suspect or have any evidence of

widespread illegal voting. Corasaniti et al., The Times

Called Officials in Every State: No Evidence of Voter

Fraud,

N.Y.

Times

(Nov.

19,

2020),

https://nyti.ms/3baEnJN. Similarly, every court to

consider such allegations has rejected them as meritless. Rutenberg et al., Trump’s Fraud Claims Died in

Court, but the Myth of Stolen Elections Lives On, N.Y.

Times (Jan. 7, 2021), https://nyti.ms/2LmVKfM. Nevertheless, state legislators in Georgia, Pennsylvania,

and Texas have already reacted to these unsupported

fraud claims by pre-filing bills that propose new voter

ID laws, make it more difficult to vote by mail, and

propose more aggressive voter-roll purges. See Voting

Laws Roundup 2020, Brennan Center for Justice (Dec.

8, 2020), https://bit.ly/3rI1rVM; see also, e.g., Niesse,

Strict Absentee Voting Limits Proposed After Record

Georgia Turnout, Atlanta Journal Constitution (Jan. 7,

2021), https://bit.ly/3scrPrb.

In short, the assault on voting rights is likely to

continue.

B. Recent Attacks On The Right To Vote Disproportionately Affect Minority Voters

Although the voting restrictions discussed in Section I.A burden all voters, they have been consistently

found to significantly and disproportionately burden

minority voters’ opportunity to participate in the political process. This is so for obvious reasons. Each voting

restriction—whether strict voter-identification requirements, poll closures, or otherwise—imposes additional costs on voting. These additional costs are disproportionately tougher to bear for minority voters,

given the persistent wealth gap between White and

non-White citizens. See Currier & Elmi, The Racial

Wealth Gap and Today’s American Dream, PEW (Feb.

16, 2018) (in 2014, typical White household had 31 days

of income in savings, whereas typical Black household

had just 5 days), https://bit.ly/3oen9yA; Bhutta et al.,

Disparities in Wealth by Race and Ethnicity in the

2019 Survey of Consumer Finances, Board of Governors of the Federal Reserve System (Sept. 28, 2020) (in

2019, typical White family had five times the wealth of

typical Hispanic family), https://bit.ly/3oFtKCn; Center

for Global Policy Solutions, The Racial Wealth Gap:

Asian Americans and Pacific Islanders (Apr. 2014) (in

2014, median wealth of White households was over

$35,000 higher than that of Asian households),

https://bit.ly/2XvUOIm. Thus, with fewer resources to

spend on overcoming additional obstacles to the ballot,

minority voters are left with an unequal opportunity to

participate in the political process.

That disproportionate burden is well-documented

at every stage of voting—from registering to vote,

staying registered to vote, getting to the polls, and

casting a ballot.

1. Registering to vote is the initial hurdle for voters, and one that is generally an impediment for minority voters. The most recent Census survey data available from the November 2018 election reveals that only

53.7% of eligible Hispanic voters, 54.2% of eligible

Asian American voters, and 63.7% of eligible Black voters are registered to vote. See U.S. Census Bureau,

Reported Voting and Registration, by Sex, Race and

Hispanic Origin, for States (Nov. 2018) (Table 4b),

http://bit.ly/2XLaYhm. By contrast, 68.4% of eligible

White voters are registered to vote. Id.

Registering to vote has become even more difficult

for minority voters in some states with the introduction

of onerous proof-of-citizenship requirements. Kansas,

for example, enacted a proof-of-citizenship requirement

so strict that it resulted in 31,089 applicants being denied registration—a figure representing approximately

12% of all voter applications during the relevant time

period. Fish v. Schwab, 957 F.3d 1105, 1128 (10th Cir.

2020).

And more than one federal court has documented

the struggles that minority voters especially face in

providing proof of citizenship. In One Wisconsin Institute, Inc. v. Thomsen, the district court found that, in

Wisconsin, “[t]he lack of a valid birth record correlated

strikingly, yet predictably, with minority status” and

that “states with a history of de jure segregation have

systemic deficiencies in their vital records systems.”

198 F. Supp. 3d 896, 915 (W.D. Wis. 2016), aff’d in part,

rev’d in part sub nom. Luft v. Evers, 963 F.3d 665 (7th

Cir. 2020). Similarly, in Veasey v. Perry, the district

court found illustrative the story of Mrs. Bates, a Black

retiree living on a $321 monthly income, who testified

on the difficulties of saving $42 to pay for a birth certificate because she “had to put the $42.00 where it was

doing the most good” and her family “couldn’t eat the

birth certificate [or] . . . pay rent with the birth certificate.” 71 F. Supp. 3d 627, 665 (S.D. Tex. 2014), aff’d in

part, rev’d in part sub nom. Veasey v. Abbott, 830 F.3d

216 (5th Cir. 2016) (en banc).

In addition to proof-of-citizenship requirements,

some states have enacted other requirements making it

more difficult to register new voters. Florida, for example, passed a law in 2011 that imposed a 48-hour

deadline on submitting collected voter registration

forms, with penalties of $50 per form per day late.

Hearing on Protecting the Right to Vote: Best and

Worst Practices Before the Subcomm. on Civil Rights

& Civil Liberties of the H. Comm. on Oversight & Reform, 116th Cong. 10 (Comm. Print 2019) (statement of

Dale Ho, at 3, ACLU Director, Voting Rights Project),

available at https://bit.ly/2LjlfhC. A federal court decision ruling that the Florida law was unconstitutional

did not stop Tennessee in 2018 from passing a similar

(in fact, worse) law. The Tennessee law imposed fines

of up to $10,000 for submitting incomplete registration

forms (while also imposing criminal liability if an entity

took more than 10 days to submit registration forms).

Id. These changes, unsurprisingly, chilled voter registration drives. In Florida, the League of Women Voters halted all registration activity, Rock the Vote excluded Florida from its national voter registration

drive, and large numbers of volunteers dropped out of

the NAACP’s voter registration drives. Id.

These chilling effects are especially significant for

minority voters, who are much more likely than White

voters to register through private voter registration

drives. In 2016, 6.9% of Black voters and 5.7% of Hispanic voters registered through private drives, compared to only 3.4% of White voters. See U.S. Census

Bureau, Reported Voting and Registration, by Sex,

Race and Hispanic Origin, for States (Nov. 2016) (Table 12), http://bit.ly/2LSQrVd.

2. Even after successfully registering to vote, minority voters are at greater risk than White voters of

being removed from voter rolls.

As noted above, tens of millions of voters have been

purged from the voter rolls in the last decade. See supra p.6. And many voter-roll purges have been riddled

with errors. In Ohio, for example, in 2019 the secretary

of state released a list of 235,000 voters set to be

purged; voting-rights groups identified 40,000 errors in

the list—i.e., an error rate of over 15%. Berman, Kick

Thousands of Voters Off Role the Rolls During a Pandemic, supra. In 2017, Wisconsin claimed that 340,000

voters should be purged because they had moved, but

an analysis by the League of Women Voters revealed

that 7% of the voters on the list (i.e., over 20,000 voters)

had not moved. Id.

Such errors are generally more likely to affect minority voters. For example, most states rely on voterroll crosscheck systems that seek to purge duplicate

registrations, but those systems are more likely to generate false positives with minority voters, as such voters are more likely to share a common surname. Studies have found that 50% of people of color have a common surname compared to only 30% of White people.

As a result, Black voters are overrepresented by 45%

on crosscheck lists, Asian voters by 31%, and Hispanic

voters by 24%, whereas White voters are underrepresented by 8%. Harmon et al., The Health of State Democracies 25, Center for Am. Progress Action Fund

(July 2015), https://bit.ly/3nhzBwh. Additionally, voters with limited English proficiency are less able to respond to erroneous purge letters because they may not

comprehend such letters, and such voters are disproportionately of Latino or Asian background, see Ramakrishnan & Ahmad, Language Diversity and English

Proficiency 3-4, Center for Am. Progress (May 27,

2014), https://ampr.gs/3idORJF. The United States

Commission on Civil Rights thus concluded that recent

voter purges have generally resulted in the disproportionate disenfranchisement of minority voters. U.S.

Comm’n on Civil Rights, An Assessment of Minority

Voting Rights Access in the United States: 2018 Statutory Report 144-157 (Sept. 2018), https://bit.ly/3ondIge.

Some states have also tried to retroactively remove

voters believed to be noncitizens; the resulting errors

have disproportionately affected minority voters. In

Florida, for example, a list that the state had created in

2012 of 2,700 potential non-citizens was found to include

at least 500 citizens. Weiner, Florida’s Voter Purge

Explained,

Wash.

Post

(June

18,

2012),

https://wapo.st/2Xdnfea. Of the 2,700 individuals listed,

87% were minority voters and 58% were Hispanic voters. Id. By way of comparison, Hispanic voters were

only 13% of the active voter base at the time. Mazzei,

Hispanics, Democrats Biggest Groups in Florida’s List

of Potential Noncitizen Voters, Analysis Shows, Tampa

Bay Times (May 12, 2012), https://bit.ly/2JKHRXT.

3. Even those who are successfully registered for

an upcoming election then confront additional obstacles

at the polls.

As noted above, many jurisdictions have closed

polling sites and/or reduced hours for voting. See supra

p.7. Such closures and reductions are likely to “disproportionately and negatively affect[]” Black voters, Ohio

State Conference of NAACP v. Husted, 768 F.3d 524,

533 (6th Cir. 2014), vacated on other grounds, 2014 WL

10384647 (6th Cir. 2014), because many of these closures take place in predominantly minority communities, see The Leadership Conference Education Fund,

Democracy Diverted (Sept. 2019), https://bit.ly/

3nPvIz0. For example, in Georgia, of the 214 polling

places closed since 2010, 80 have been in metro Atlanta,

where most Black voters live. Derysh, GOP Vows to

Probe Georgia Election “Catastrophe” in Minority Areas, Dems Say it Was “No Accident,” Salon (June 10,

2020), https://bit.ly/350i2dL. The same pattern repeated itself in the recent runoff Senate election in Georgia;

for example, state officials decided to close 6 of 11 early-voting polling sites in Cobb County, specifically in

those areas where most of the county’s Black and Hispanic voters live. Derysh, After Democrats Flip State,

Georgia Moves to Shut Down Early Voting Locations

Ahead of Senate Runoff, Salon (Dec. 9, 2020),

https://bit.ly/3om2nxi.

More generally, the phenomenon of long lines at

the polls—which is, of course, exacerbated by poll closures and reduced voting hours—disproportionately

affects minority voters. In 2017, research demonstrated that “a voter in a predominantly minority precinct

experiences a line that is twice as long, on average,

than a voter in a predominantly white precinct.” Pettigrew, The Racial Gap in Wait Times: Why Minority

Precincts Are Underserved by Local Election Officials,

132 Political Sci. Quarterly 527, 527 (Nov. 2017), available at https://bit.ly/3bqCdFT. Indeed, several studies

have found that “the more voters in a precinct who are

non-white, the longer the wait times.” Weil et al., The

2018 Voting Experience: Polling Place Lines 21, Bipartisan

Policy

Center,

(Nov.

2019),

https://bit.ly/35vAUBz. And a more recent nationwide

study also found that neighborhoods which became less

White over the past decade had fewer electoral resources in 2018 than counties that became more White.

See Klain et al., Waiting to Vote 10, supra.

4. Finally, if voters surmount all of the previously

discussed obstacles, they may encounter yet another

significant roadblock before being allowed to cast a ballot: strict voter ID requirements. As noted above, 16

states in the past decade have enacted such laws. See

supra p.5.

And there is overwhelming evidence that strict

voter ID laws disproportionately prevent minority voters from equal participation in the voting process. In

large part, this is because minority voters are much

less likely to have the limited types of accepted ID.

See, e.g., Stewart, Voter ID: Who Has Them? Who

Shows Them?, 66 Okla. L. Rev. 21, 36-43 (2013); Barreto et al., The Disproportionate Impact of Voter-ID Requirements on the Electorate—New Evidence from Indiana, 42 Politics & Political Sci. 111 (2009); Hood III &

Bullock III, Worth a Thousand Words?: An Analysis of

Georgia’s Voter Identification Statutes, 36 Am. Pol. Research 555 (2008); Hajnal et al., Voter Identification

Laws and the Suppression of Minority Votes, 79 J. of

Pol. 363 (2017). Additionally, minority voters are also

more likely than White voters to be asked to present

ID, further compounding the disproportionate effect of

strict voter ID laws. Stewart, 2012 Survey of the Performance of American Elections iii, MIT (Feb. 25,

2013).

As the prior discussion demonstrates, over the last

decade, numerous jurisdictions have adopted voting

regulations that significantly (and likely unjustifiably)

burden minority voters’ participation in the political

process. Especially in the absence of Section 5, Section

2 plays an essential role in advancing the federal commitment to protecting minority voters and ensuring

that they have an equal opportunity to participate in

the political process.

II. THIS COURT SHOULD CONTINUE TO INTERPRET SECTION 2 TO EMPOWER COURTS TO PROTECT AGAINST

THE PERSISTENT AND ADAPTIVE PROBLEM OF DISCRIMINATION IN VOTING

A. For Generations, This Court Has Protected

Democracy By Striking Down Barriers To

Participation

Many consider Brown v. Board of Education to

mark the beginning of the Court’s civil rights awakening. 347 U.S. 483 (1954). But the Court began long before then, deciding significant cases that dislodged entrenched voting discrimination and advanced the prodemocracy values of our Constitution that rely so heavily on full and open political participation. This history,

although familiar to many, is especially worth reviewing today, when the importance of protecting full participation as a bedrock of legitimacy for our democracy

has never been more evident.

1. The Court first targeted a form of blatant

apartheid and exclusion, namely the persistent efforts

to exclude Black voters from the Democratic Party, in

the “white primary” cases. See Peretti, Constructing

the State Action Doctrine, 1940-1990, 35 Law & Soc.

Inquiry 273, 276 (2010).

The first case in this series was Nixon v. Herndon,

273 U.S. 536 (1927). Justice Holmes’s opinion for the

unanimous Court held that a Texas statute facially prohibiting Black people from participating in Democratic

party elections was a “direct and obvious infringement”

of the Fourteenth Amendment’s equal protection

clause. Id. at 541.

As we are seeing today, an advance for minority

participation faced immediate backlash. Texas quickly

enacted a new statute declaring that each political party’s executive committee would have the power to prescribe the qualifications of its own members. Nixon,

the same plaintiff, sued again because the Democratic

party had (unsurprisingly) excluded Black voters such

as himself. Nixon v. Condon, 286 U.S. 73 (1932).

Against the state’s urging that a political party is always a “voluntary association” immune from Fourteenth Amendment limitations, the Court held narrowly that the Texas Democratic party’s executive committee was acting pursuant to state-delegated power in

determining its membership and was therefore an

agent of the state for that purpose. Id. at 83. The

Court left open the question of whether a political party, “without restraint by any law to determine its own

membership,” could constitutionally exclude Black people. Id.

In 1944, the Court squarely confronted “whether

the exclusionary action of [a political] party was the action of [a] State.” Smith v. Allwright, 321 U.S. 649, 661

(1944). It would have been all too easy for the Court to

give the easy, formalistic answer of “no,” because a political party was a private organization. But the Court

looked past formalities, straight into the substantive

heart of the voting problem. The Court expressly recognized that the problem of minority exclusion in voting went to the heart of American democracy: “The

United States is a constitutional democracy” and “[i]ts

organic law grants to all citizens a right to participate

in the choice of elected officials without restriction by

any state because of race.” Id. at 664. And that right,

the Court explained, “is not to be nullified by a state

through casting its electoral process in a form which

permits a private organization to practice racial discrimination in the election.” Id. The Court accordingly

looked at the practical realities in the way primary

elections, state regulation, and voter access intertwined, concluding that the political party’s exclusion

was “state action within the meaning of the Fifteenth

Amendment.” Id. at 663-664.

Less than a decade later, the Court confronted yet

another permutation of the exclusionary practices

struck down in Allwright. In Terry v. Adams, 345 U.S.

461 (1953), the private organization that was excluding

Black voters was not a political party (or regulated as

such), but its pre-primaries had dictated the result in

the actual primaries for decades. In holding that the

private organization’s exclusion constituted state action, Justice Black’s plurality opinion rested principally

on the practical reality that the pre-primary was “an

integral part, indeed the only effective part, of the elective process.” Id. at 469. Justice Clark, concurring on

behalf of himself and three other justices, described the

arrangement as an “old pattern in new guise.” Id. at

480. Again, the Court looked past formalities and

grounded its ruling in the facts and historical context.

2. The Court next targeted a more subtle but

equally fatal obstacle to democratic inclusion: the situation where minority voters can formally cast a ballot,

but in reality, that ballot does not carry the same

weight as a ballot cast by White voters.

Gomillion v. Lightfoot concerned the constitutionality of an Alabama law that famously gerrymandered

the municipality around Tuskeegee “from a square to

an uncouth twenty-eight-sided figure.” 364 U.S. 339,

340 (1960). The Court recognized that the gerrymander

“was cloaked in the garb of the realignment of political

subdivisions,” id. at 345, but nevertheless held that the

Tuskegee gerrymander was blatant and impermissible

race discrimination, see id. at 341.

One year after Gomillion, in Baker v. Carr, the

Court corrected a profound systemic dysfunction in the

political process—the inability of minority voters to

have their voting rights recognized and remedied by a

federal court. 369 U.S. 186 (1962). The plaintiffs in

Baker urged that Tennessee’s legislative apportionment statute was unconstitutional. The district court

determined that the matter presented a nonjusticiable

“political question” and dismissed the case. Id. at 209.

But the Court disagreed, holding that the “right asserted [was] within the reach of judicial protection under the Fourteenth Amendment.” Id. at 237. As commentary presciently observed at the time, Baker

“move[d] broadly in the direction of developing and

supporting procedures necessary for the effective operation of a modern democratic system.” Emerson,

Malapportionment and Judicial Power, 72 Yale L.J. 64

(1962). Without the Court’s reluctant but indispensable

intervention, dispossessed minority voters would have

lacked—indeed today might still not have—a way to

vindicate their voting rights in federal court. By enforcing the fundamental promise of equal representation, despite fear of entering a “political thicket,” Colegrove v. Green, 328 U.S. 549, 556 (1946), the Court in

fact conveyed to the nation that it stood for democracy.

As one commentator observed: “At least some of us

who shook our heads over Baker v. Carr are prepared

to admit that it has not been futile, that it has not impaired, indeed that it has enhanced, the prestige of the

Court.” Jaffe, Was Brandeis an Activist? The Search

for Intermediate Premises, 80 Harv. L. Rev. 986, 991

(1967).

3. The Court also responded to obstacles that

raised pretextual grounds for excluding minority voters from the democratic franchise. In Hunter v. Underwood, this Court invalidated a provision of Alabama’s Constitution, which disfranchised citizens for

misdemeanors “involving moral turpitude,” and had

been applied to bar plaintiffs from voting for life because they had presented a bad check. 471 U.S. 222,

224 (1985). Writing for the unanimous Court, thenJustice Rehnquist explained that the “original enactment was motivated by a desire to discriminate against

blacks on account of race and the section continues to

this day to have that effect.” Id. at 233. Yet again, the

Court looked into the broader context underlying a

formally neutral law and appropriately recognized the

reality of racial discrimination.

History has judged the Court’s cases not as unwarranted judicial interventions in the democratic process

but rather as much-needed guardrails ensuring that

American democracy would endure. In a multiracial

society where voting is the highest act of democratic

expression and citizenship—as voting is “preservative

of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370

(1886)—the Court embraced a principle of minority inclusion in voting.

Congress followed, in passing the Voting Rights

Act of 1965. Pub. L. No. 89-110, 79 Stat. 437. If Reconstruction was a rebirth of America around the principle

of minority inclusion, the Voting Rights Act was a new

and meaningful federal commitment to that principle in

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

315 (1966). And Congress—reflecting the will of the

American people—has repeatedly affirmed that commitment, reauthorizing and expanding the Act (includ-

ing Section 2) in 1970, 1975, 1982, 1992, and 2006. See

Pub. L. No. 91-285, 84 Stat. 314 (1970); Pub. L. No. 9473, 89 Stat. 402 (1975); Pub. L. No. 97-205, 96 Stat. 131

(1982); Pub. L. No. 102-344, 106 Stat. 921 (1992); Pub. L.

No. 109-246, 120 Stat. 577 (2006).

B. Courts Can And Must Be Vigilant To Combat

Discrimination In Voting

One unfortunate lesson of this Court’s voting-rights

jurisprudence discussed in Section II.A is that the enduring nature of voting discrimination poses a threat to

American democracy. As the pre-eminent historian of

voting and democracy, Professor Alexander Keyssar,

explained in recent testimony, “the history of voting

rights since the founding, and despite our most heroic

images of our country, has not been one of continuous

expansion and enlargement”; rather, it has been “up

and down” with significant periods of contraction.

Keyssar, U.S. Commission on Civil Rights Meeting,

Part 2, C-SPAN (Aug. 18, 2017), https://bit.ly/3nF4laG.

And “the conflicts and patterns of exclusion have always been along the lines of race, class, and for a long

time gender.” Id. In short, this country’s “history of

democratic rights is a history of conflict” because “not

everybody wants everybody to participate.” Id.

But the Court’s jurisprudence also points to the solution: Courts must be vigilant to combat the persistent and adaptive problem of discrimination in voting.

That is, courts must recognize the corrosive effects of

voting discrimination and, with the benefit of

longstanding jurisprudence, look past formalities and

examine the practical realities and historical context, in

order to ferret out discrimination in voting. Or, as Professor Keyssar put it, the “lesson” from American history is that “if you want to preserve voting rights, you

have to protect them.” Keyssar, Commission on Civil

Rights Meeting, supra.

And recent decisions of this Court and the courts of

appeals demonstrate that federal courts can, in fact, be

vigilant in carefully reviewing the totality of circumstances underlying challenged voting practices and appropriately striking down those that cross the line into

discrimination.

For example, in League of United Latin American

Citizens v. Perry, this Court held that Texas violated

Section 2 because its redistricting “undermined the

progress of a racial group that ha[d] been subject to

significant voting-related discrimination and that was

becoming increasingly politically active and cohesive.”

548 U.S. 399, 439 (2006). “In essence the State took

away the Latinos’ opportunity because Latinos were

about to exercise it,” the Court stated, which raised the

specter of “intentional discrimination.” Id. at 440. LULAC appropriately recognized that voting progress is

precarious and highlighted how swiftly a state can, with

a “troubling blend of politics and race,” dilute the votes

of a “group that was beginning to achieve § 2’s goal of

overcoming prior electoral discrimination.” Id. at 442.

The Court’s careful assessment, based on the totality of

the circumstances, thus gave minority voters a fair opportunity to choose their leaders.

More recently, in North Carolina State Conference

of NAACP v. McCrory, the Fourth Circuit corrected

the district court’s “failure of perspective,” which had

led it to “ignore critical facts bearing on legislative intent, including the inextricable link between race and

politics in North Carolina.” 831 F.3d 204, 214 (4th Cir.

2016). In North Carolina, after “years of preclearance

and expansion of voting access,” Black “registration

and turnout rates had finally reached near-parity with

white registration and turnout rates” by 2013. Id. But,

on the day after the Supreme Court handed down Shelby County v. Holder, 570 U.S. 529 (2013), a leader of

the party that “newly dominated the legislature” announced “an intention to enact what he characterized as

an ‘omnibus’ election law.” 831 F.3d at 214. The legislature requested “data on the use, by race, of a number

of voting practices” and then passed provisions that

“target[ed] African Americans with almost surgical

precision.” Id. The law was “the most restrictive voting law North Carolina ha[d] seen since the era of Jim

Crow.” Id. at 229. After careful review of the entire

record and totality of circumstances, the Fourth Circuit

stated that it could “only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent.” Id. at 215.

Additionally, the Tenth Circuit in Fish v. Schwab

struck down Kansas’s proof-of-citizenship voting requirement as unconstitutional and contrary to the National Voter Registration Act. 957 F.3d 1105. The

court recognized the challenge of “separat[ing] those

regulations that properly impose order—thereby protecting the fundamental right to vote—from those that

unduly burden it—thereby undermining it.” Id. at

1122. But the Court refused to accept the state’s formalistic suggestion that, “as a matter of law,” the requirement to present proof of citizenship only imposed

a “limited burden” on voters. Id. at 1130. Rather, the

court examined the facts (as found by the district court)

and determined that the requirement, in fact, disenfranchised 31,089 legitimate voters. Id. And it carefully assessed the state’s proffered justifications for the

proof-of-citizenship requirement, holding that they

were insufficiently supported by the record to support

such a significant infringement on the right to vote. Id.

These court decisions reflect the parting words of

civil-rights leader John Lewis. “Democracy is not a

state. It is an act, and each generation must do its part

. . . .” Lewis, Together, You Can Redeem the Soul of

our Nation, N.Y. Times (July 30, 2020),

https://nyti.ms/2XR1bGk.

C. The Court Should Continue To Interpret Section 2 To Empower Courts To Combat Discrimination In Voting

As the foregoing demonstrates, Section 2 represents a federal commitment to the democratic principle

of minority inclusion in voting—a commitment built on

this Court’s own cases protecting democracy. That

principle demands judicial vigilance, to conduct the

careful context-specific inquiry to properly identify discrimination in voting.

This Court should interpret Section 2 accordingly,

to empower courts to exercise the vigilance required to

protect minority participation in democracy. Specifically, Section 2 should be capacious enough to allow courts

to consider the totality of circumstances and, based on

that context-specific inquiry, determine whether a particular electoral barrier crosses the line from a mere

electoral rule into one that disproportionately and unjustifiably lessens minority voters’ opportunity to participate equally in the political process.

This point is well-illustrated by comparing the

Fifth and Seventh Circuits confronting strict voter ID

laws in Texas and Wisconsin respectively. The Fifth

Circuit conducted a totality-of-the-circumstances analysis and struck down Texas’s strict voter ID law, based

on a significant disparate impact and a nexus with the

state’s own history of discrimination. The Seventh Circuit, by contrast, interpreted Section 2 as a simplistic

equal-treatment rule, and upheld Wisconsin’s strict

voter ID law simply because it did not facially discriminate against minority voters.

1. Texas Voter ID Law. Within hours of Shelby

County, Texas Attorney General Greg Abbott declared

that the state’s restrictive voter ID law, which had

been previously blocked under Section 5’s preclearance

mechanism, would “take effect immediately.” Statement by Texas Attorney General Greg Abbott (June 25,

2013), https://bit.ly/34Z3Stm; see also Ford, The Entirely Preventable Battles Raging Over Voting Rights, The

Atlantic (Apr. 14, 2017), https://bit.ly/2KI6zc9. That

law would have disenfranchised over 500,000 voters,

with “Hispanic registered voters and Black registered

voters . . . respectively 195% and 305% more likely than

their Anglo peers to lack” acceptable ID. Veasey, 830

F.3d at 250.

In analyzing the Texas voter ID law, the en banc

Fifth Circuit began by appropriately recognizing that

the essence of a Section 2 claim is that “a certain electoral law, practice, or structure interacts with social

and historical conditions to cause an inequality in the

opportunities enjoyed by black and white voters to

elect their preferred representatives.” Veasey, 830

F.3d at 244 (quoting Thornburg v. Gingles, 478 U.S. 30,

47 (1986)). The court thus adopted a two-part test, with

the first part examining statistical evidence “to discern

whether a law has a discriminatory impact” and the

second part considering various factors identified by

Congress “to determine whether such an impact is a

product of current or historical conditions of discrimi-

nation such that it violates Section 2.” Id. at 245. In so

doing, the court rejected efforts to adopt simplistic

bright-line rules, reasoning that “assessing whether a

law has a discriminatory impact is no simple matter and

does not lend itself to simple formulation.” Id. at 249

n.41.

Applying the two-part test just described, the Fifth

Circuit then held that the Texas voter ID law violated

Section 2. The law imposed “excessive and disparate

burdens on minority voters,” Veasey, 830 F.3d at 250,

and the law “worked in concert with Texas’s legacy of

state-sponsored discrimination to bring about this disproportionate result,” id. at 264-265. That statesponsored discrimination, the court explained, included

the state’s role in de jure segregation in education, employment, housing, and transportation. Id. at 259.

Although the court struck down Texas’s strict voter ID law, the Fifth Circuit’s careful analysis was tethered to that specific law and its underlying context and

did not sweep more broadly to encompass voter ID

laws generally. At the same time, the court’s decision

had a concrete and measurable impact, ensuring that

hundreds of thousands of minority voters could equally

participate in American democracy.

2. Wisconsin Voter ID Law. In 2011, Wisconsin

enacted a photo ID law that only permitted eight forms

of photo ID. 2011 Wis. Act 23. A federal district court

enjoined the law partly on the ground that it violated

Section 2 by creating a disparate impact on minority

voters. Frank v. Walker, 17 F. Supp. 3d 837, 863, 879

(E.D. Wis. 2014). Specifically, the district court found

that over 300,000 Wisconsin voters lack acceptable ID,

that Black and Hispanic voters were significantly more

likely than White voters to lack ID, and furthermore

that Black and Hispanic voters were less likely to have

the documents necessary to obtain qualified ID. Id. at

854, 870-872.

The Seventh Circuit reversed, holding that the

voter ID law did not violate Section 2. Frank v. Walker, 768 F.3d 744, 755 (7th Cir. 2014). The Seventh Circuit did not dispute the disparate effect of the voter ID

law, nor that its effect was “traceable to the effects of

discrimination in areas such as education, employment,

and housing.” Id. at 753. The court nevertheless upheld the law by criticizing the two-step approach discussed above and instead reading Section 2 as only “an

equal-treatment requirement.” Id. at 755. The court

accordingly rejected the plaintiffs’ challenge because

the law did not facially “draw any line by race” and “because in Wisconsin everyone has the same opportunity

to get a qualifying photo ID.” Id. at 753, 755.

The Fifth Circuit identified the fundamental problem with the Seventh Circuit’s equal-treatment interpretation. That approach would “giv[e] states a free

pass to enact needlessly burdensome laws with impermissible racially discriminatory impacts” when “[t]he

Voting Rights Act was enacted to prevent just such invidious, subtle forms of discrimination.” Veasey, 830

F.3d at 247.

And the consequences of the Seventh Circuit’s approach are deeply concerning. As a result of the Seventh Circuit’s decision, Wisconsin’s voter ID law was in

place during the November 2016 election. And studies

have conclusively found that the voter ID law significantly disenfranchised minority voters. A survey conducted at the University of Wisconsin found that nearly

17,000 registered voters in just two Wisconsin counties

were deterred from casting ballots because of Wiscon-

sin’s voter ID law. Wines, Wisconsin Strict ID Law

Discouraged Voters, Study Finds, N.Y. Times (Sept.

25, 2017), https://nyti.ms/3hUOvHX. Only 8.3% of

White registered voters were deterred, compared to

27.5% of Black registered voters. Mayer, Press Release: Voter ID Study Shows Turnout Effects in 2016

Wisconsin Presidential Election (Sept. 25, 2017),

https://bit.ly/3oPPQ5g. These estimates did not include

people who did not even register to vote because they

did not have an accepted form of ID. Id.; Wines, Wisconsin Strict ID, supra. And while these numbers may

appear small on the surface, they are significant, as the

margin of victory in Wisconsin in the 2016 and 2020

Presidential contests has been less than 25,000 votes.

The point is not that all laws regulating access to

voting are unlawful but that Section 2 should be capacious enough to empower courts to conduct contextspecific inquiries into whether a particular law crosses

the line from a mere electoral rule into one that disproportionately and unjustifiably lessens minority voters’

opportunity to participate equally in the political process. This Court should interpret Section 2 to ensure

that it can serve that crucial purpose.

CONCLUSION

The Court should affirm the Ninth Circuit’s judgment.

Respectfully submitted.

DEBO P. ADEGBILE

Counsel of Record

MARISSA MEDINE

NELSON CASTAÑO

WILMER CUTLER PICKERING

HALE AND DORR LLP

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(202) 663-6000

JANUARY 2021

APPENDIX

APPENDIX: LIST OF AMICI

ACCESS

Advancement Project National Office

American Federation of Labor and Congress of

Industrial Organizations

Andrew Goodman Foundation

Anti-Defamation League (ADL)

Asian & Pacific Islander American Health Forum

Asian Americans Advancing Justice

Black Alliance for Just Immigration

Central Conference of American Rabbis

Clean Elections Texas

Common Cause

Communications Workers of America

Demos

End Citizens United / Let America Vote Action Fund

Fair Count Inc

Generation Vote

Government Accountability Project

Hispanic Federation

Justice for Migrant Women

Lambda Legal

League of Women Voters United States

Matthew Shepard Foundation

Men of Reform Judaism

Mid-Ohio Valley Climate Action

NARAL Pro-Choice America

National Alliance for Partnerships in Equity (NAPE)

National Association of Social Workers (NASW)

National Black Justice Coalition

National Center for Lesbian Rights

National Council of Churches

National Council of Jewish Women

National Education Association

National Equality Action Team (NEAT)

National Women’s Law Center

NETWORK Lobby for Catholic Social Justice

New American Leaders Action Fund

New American Voices

Oxfam America

People for the American Way Foundation

PIVOT – The Progressive Vietnamese American

Organization

Planned Parenthood Action Fund

Progressive Turnout Project

Sikh Coalition

Southern Poverty Law Center

The DKT Liberty Project

The Workers Circle

UnidosUS

Union for Reform Judaism

Union of Concerned Scientists

Women Lawyers on Guard Inc.

Women of Reform Judaism

Youth Progressive Action Catalyst

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.