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

Nos. 19-1257 and 19-1258

In The

Supreme Court of the United States

___________

MARK BRNOVICH, ATTORNEY GENERAL OF

ARIZONA, ET. AL.,

Petitioners,

v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

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 THE NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC., AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

___________

SHERRILYN IFILL

COUNSEL FOR AMICUS CURIAE

JANAI S. NELSON

NAACP LEGAL DEFENSE &

SAMUEL SPITAL

EDUCATIONAL FUND, INC.

LEAH C. ADEN*

DEUEL ROSS

* COUNSEL OF RECORD

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

JANUARY 20, 2021

40 Rector St., Fifth Floor

New York, NY 10006

(212) 965-2200

CONTINUES ON INSIDE COVER

laden@naacpldf.org

MAHOGANE D. REED

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14th St., NW

Suite 600

Washington, DC 20005

(202) 682-1300

i

TABLE OF CONTENTS

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

INTERESTS OF AMICUS CURIAE ........................... 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................ 3

ARGUMENT ................................................................ 9

I. Since Shelby County, Section 2 Is the

Primary Provision Used to Challenge

Election

Laws

that

Have

a

Discriminatory Result. ................................... 9

a. The VRA’s Passage Came After

Decades of States Implementing

Facially Race-Neutral Election

Laws That Interacted with the

Socio-Economic Conditions of Black

People to Deny Their Right to Vote. .... 10

b. Section 2’s Broad Proscription of

Discriminatory Voting Laws Has

Become More Necessary Since This

Court’s Decision in Shelby County....... 11

II. Section 2’s Text, History, and Purpose

Prohibit Voting Measures That Interact

with Social or Historical Discrimination

Outside the Electoral Sphere to Burden

Black Voters’ Access to the Franchise. ........ 16

a. This Court Has Interpreted the

Plain Text of Section 2 to Broadly

Prohibit Election Laws That

Interact with Social and Historical

ii

Conditions to Deny the Right to

Vote.16

b. Section

2

Examines

All

Circumstances Bearing on the Issue

of the Causal Link Between Social

and Historical Conditions and a

Challenged

Voting

Practice’s

Discriminatory Result. ......................... 21

c. An Expansive Totality of the

Circumstances Analysis Does Not

Threaten

States’

ElectionAdministration Autonomy. .................. 28

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Allen v. City of Evergreen,

No. 13-0107, 2014 WL 12607819

(S.D. Ala. Jan. 13, 2014)....................................... 14

Allen v. Waller Cty.,

472 F. Supp. 3d 351 (S.D. Tex. 2020) .............. 2, 14

Beer v. United States,

425 U.S. 130 (1976) ................................................ 1

Briscoe v. Bell,

432 U.S. 404 (1977) ................................................ 9

Burton v. City of Belle Glade,

178 F.3d 1175 (11th Cir 1999) ............................. 20

Chisom v. Roemer,

501 U.S. 380 (1991) ........................ 1, 13, 16, 17, 18

City of Lockhart v. United States,

460 U.S. 125 (1983) .............................................. 12

City of Mobile v. Bolden,

446 U.S. 55 (1980) ................................................ 17

Coal. for Educ. in Dist. One v. Bd. of

Elections,

495 F.2d 1090 (2d Cir. 1974) ................................ 14

iv

Dem. Nat’l Comm. v. Hobbs,

948 F.3d 989 (9th Cir. 2020) (en

banc) ................................................................ 16, 27

Farrakhan v. Gregoire,

623 F.3d 990 (9th Cir. 2010) (en

banc) ........................................................................ 2

Frank v. Walker,

768 F.3d 744 (7th Cir. 2014) ............................ 6, 30

Gaston County v. United States,

395 U.S. 285 (1969) .............................................. 24

Gingles v. Edmisten,

590 F. Supp. 345 (E.D. N.C. 1984) ......................... 7

Gomez v. City of Watsonville,

863 F.2d 1407 (9th Cir. 1988) .................. 23, 24, 25

Gomillion v. Lightfoot,

364 U.S. 339 (1960) ................................................ 1

Gonzalez v. Arizona,

677 F.3d 383 (9th Cir. 2012) (en

banc) ................................................................ 20, 30

Goodloe v. Madison Cty. Bd. of Elect.

Comm’rs,

610 F. Supp. 240 (S.D. Miss. 1985) ...................... 14

Goosby v. Hempstead,

956 F. Supp. 326 (E.D.N.Y. 1997) ........................ 27

Greater Birmingham Ministries v. Sec’y

of State for Ala.,

966 F.3d 1202 (11th Cir. 2020) ........................ 1, 30

v

Harris v. Siegelman,

695 F. Supp. 517 (M.D. Ala. 1988) ....................... 14

Hayden v. Pataki,

449 F.3d 305 (2d Cir. 2006) (en banc) .................... 2

Hernandez v. Woodard,

714 F. Supp. 963 (N.D. Ill. 1989) ......................... 14

Houston Lawyers’ Ass’n v. Attorney Gen.

of Texas,

501 U.S. 419 (1991) ................................................ 1

Hunter v. Underwood,

471 U.S. 222 (1985) ................................................ 1

Johnson v. DeGrandy,

512 U.S. 997 (1994) .................................... 7, 13, 18

League of United Latin Am. Citizens v.

Perry,

548 U.S. 399 (2006) ............................................ 1, 7

League of Women Voters of N.C. v. North

Carolina,

769 F.3d 224 (4th Cir. 2014) .........................passim

Lee v. Va. State Bd. of Elections,

843 F.3d 592 (4th Cir. 2016) ................................ 30

McIntosh Cty. Branch of NAACP v. City

of Darien,

605 F.2d 753 (5th Cir. 1980) .......................... 24, 25

Mich. State A. Philip Randolph Inst. v.

Johnson,

833 F.3d 656 (6th Cir. 2016) .................... 20, 24, 27

vi

Miss. State Chapter, Operation PUSH,

Inc. v. Mabus,

932 F.2d 400 (5th Cir. 1991) ............................ 2, 14

Missouri v. Jenkins,

491 U.S. 274 (1989) .......................................... 8, 29

Morse v. Republican Party of Va.,

517 U.S. 186 (1996) .............................................. 25

Murray v. Kaple,

66 F. Supp. 2d 745 (D.S.C. 1999) ......................... 14

N. Carolina State Conf. of NAACP v.

McCrory,

831 F.3d 204 (4th Cir. 2016) .......................... 15, 30

Navajo Nation Human Rights Comm’n

v. San Juan Cty.,

281 F. Supp. 3d 1136 ............................................ 26

Nipper v. Smith,

39 F.3d 1494 (11th Cir. 1994) (en

banc ....................................................................... 26

Nw. Austin Mun. Util. Dist. No. One v.

Holder,

557 U.S. 193 (2009) ............................................ 1, 4

Ohio State Conference of NAACP v.

Husted,

768 F.3d 524 (6th Cir. 2014 ................................. 27

Oregon v. Mitchell,

400 U.S. 112 (1970) .............................................. 25

vii

P.R. Org. for Political Action v. Kusper,

490 F.2d 575 (7th Cir.1973) ................................. 14

Patino v. City of Pasadena,

230 F. Supp. 3d 667 (S.D. Tex. 2017) .................. 15

People First of Ala. v. Merrill,

__ F. Supp. 3d __, No. 2:20-cv-00619AKK, 2020 WL 5814455 (N.D. Ala.

Sept. 30, 2020) .................................................. 2, 14

Reno v. Bossier Par. Sch. Bd.,

520 U.S. 471 (1997) .............................................. 12

Rogers v. Lodge,

458 U.S. 613 (1982) .......................................... 7, 21

Sanchez v. Cegavske,

214 F. Supp. 3d 961 (D. Nev. 2016) ............... 14, 27

Shelby Cty. v. Holder,

570 U.S. 529 (2013) .......................................passim

Smith v. Allwright,

321 U.S. 649 (1944) ................................................ 1

Smith v. Salt River Project Agric.

Improvement & Power Dist.,

109 F.3d 586 (9th Cir. 1997) ................................ 14

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ...................................... 3, 4, 11

Spirit Lake Tribe v. Benson Cty.,

No. 2:10-CV-095, 2010 WL 4226614

(D.N.D. Oct. 21, 2010) .................................... 14, 27

viii

Thornburg v. Gingles,

478 U.S. 30 (1986) .........................................passim

Toney v. White,

488 F.2d 310 (5th Cir.1973) ................................. 14

Underwood v. Hunter,

730 F.2d 614 (11th Cir. 1984) ........................ 10, 21

United States v. Berks Cty.,

277 F. Supp. 2d 570 (E.D. Pa. 2003) .................... 14

United States v. Brown,

561 F.3d 420 (5th Cir. 2009) ................................ 14

United States v. Marengo Cty. Comm’n,

731 F.2d 1546 (11th Cir. 1984) ............................ 23

Veasey v. Abbott,

830 F.3d 216 (5th Cir. 2016) (en

banc) ...............................................................passim

White v. Regester,

412 U.S. 755 (1973) .............................................. 20

White v. Regester,

422 U.S. 935 (1975) (per curiam) ........................... 1

Yick Wo v. Hopkins,

118 U.S. 356 (1886) ................................................ 1

Zimmer v. McKeithen,

485 F.2d 1297 (5th Cir. 1973) (en

banc (1976)............................................................ 20

ix

Statutes and Constitional Provisons

52 U.S.C. § 10301 ................................................passim

52 U.S.C. § 10303(a)(1) .......................................... 4, 11

52 U.S.C. § 10304(a) .................................................. 11

U.S. Const. am. XV, § 1 ............................................... 3

Other Authorities

Arnold Rose, The Negro in America

(Harper, 1948) ...................................................... 11

Janai Nelson, The Causal Context of

Disparate Vote Denial, 54 B.C.L. Rev.

579 (2013) ............................................................. 24

S. Rep. 97-417 (1982) ..........................................passim

1

INTERESTS OF AMICUS CURIAE 1

The NAACP Legal Defense and Educational Fund,

Inc. (“LDF”) is a non-profit, non-partisan legal

organization founded in 1940 under the leadership of

Justice Thurgood Marshall. LDF’s mission is to

achieve racial justice and to ensure the full, fair, and

free exercise of constitutional and statutory rights for

Black people and other people of color. Because the

franchise is “a fundamental political right . . .

preservative of all rights,” Yick Wo v. Hopkins, 118

U.S. 356, 370 (1886), LDF has worked for over 80 years

to combat threats to Black people’s right to vote and

political representation. LDF has been involved in

many of the precedent-setting cases regarding racial

discrimination in voting before this Court and other

federal courts. See, e.g., Shelby Cty. v. Holder, 570 U.S.

529 (2013); Nw. Austin Mun. Util. Dist. No. One v.

Holder, 557 U.S. 193 (2009); League of United Latin

Am. Citizens v. Perry (“LULAC”), 548 U.S. 399 (2006);

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

Lawyers’ Ass’n v. Attorney Gen. of Texas, 501 U.S. 419

(1991); Thornburg v. Gingles, 478 U.S. 30 (1986);

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

United States, 425 U.S. 130 (1976); White v. Regester,

422 U.S. 935 (1975) (per curiam); Gomillion v.

Lightfoot, 364 U.S. 339 (1960); Smith v. Allwright, 321

U.S. 649 (1944); Greater Birmingham Ministries v.

Pursuant to Supreme Court Rule 37.6, counsel for Amicus

certify that Amicus and their counsel authored this brief in its

entirety, and no party or its counsel, nor any person or entity

other than Amicus or their counsel, made a monetary

contribution to this brief’s preparation or submission. All parties

have provided written consent to the filing of this brief.

1

2

Sec’y of State for Ala., 966 F.3d 1202 (11th Cir. 2020);

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

banc); Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir.

2010) (en banc); Hayden v. Pataki, 449 F.3d 305 (2d

Cir. 2006) (en banc); Miss. State Chapter, Operation

PUSH, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991);

People First of Ala. v. Merrill, __ F. Supp. 3d __, No.

2:20-cv-00619-AKK, 2020 WL 5814455 (N.D. Ala.

Sept. 30, 2020); Allen v. Waller Cty., 472 F. Supp. 3d

351 (S.D. Tex. 2020).

This case raises important issues about the

application of Section 2 of the Voting Rights Act of

1965 (“the VRA”), 52 U.S.C. § 10301. For more than 55

years, the VRA has operated as one of the most

successful pieces of federal civil rights legislation.

Since this Court’s Shelby County decision in 2013

rendered the VRA’s Section 5 preclearance

requirement unenforceable, however, states and local

jurisdictions have unleashed a torrent of new voting

rules that deny or burden the ability of Black people to

vote and to participate equally in the political process.

Section 2 is now the principal tool under the VRA to

block and remedy these new discriminatory measures.

Notwithstanding the VRA’s historical successes, racial

discrimination in voting still poses a unique threat to

our democracy. LDF has a significant interest in

meeting that threat through the continued

enforcement of Section 2.

3

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

The historical and contemporary record of voting

discrimination by federal, state, and local

governments against Black people is long, persistent,

and egregious. The Reconstruction Amendments’

collective promise of equality for Black Americans—

including the Fifteenth Amendment’s guarantee in

1870 that the right of all citizens “shall not be denied

or abridged . . . on account of race, color, or previous

condition of servitude,” U.S. Const. am. XV, § 1—was

blatantly obstructed for nearly a century after the

Amendments’ ratification. Post-Reconstruction, state

and private actors subjected Black Americans to racial

violence and flagrant discrimination in all areas of life,

including

education,

employment,

healthcare,

housing,

and

transportation.

States

and

municipalities then used the disadvantaged socioeconomic status of Black people to create

discriminatory voting policies, including literacy tests

and poll taxes, whose very success was premised on

the existence of racial discrimination in other aspects

of social, economic, and political life. See, e.g., South

Carolina v. Katzenbach, 383 U.S. 301, 310–11 & nn.9–

10 (1966) (the effectiveness of literacy tests at blocking

Black Americans from voting resulted, in significant

part, from the pervasiveness of racial discrimination

in education).

Faced with this reality, heroic Black Americans

and their allies organized and agitated to ensure that

our country reckoned with the inherent conflict

between its discriminatory actions and its democratic

ideals. The Civil Rights Movement generally, and the

4

violent events of Bloody Sunday in Selma, Alabama,

specifically, compelled Congress’s enactment of the

VRA. The purpose of the VRA was ambitious: to finally

“banish the blight of racial discrimination in voting.”

Katzenbach, 383 U.S. at 308. The VRA sought to

address electoral practices aimed at interfering with

Black voters’ ability to participate in the political

process, including those voting laws that interacted

with the historical and current socio-economic plight

of Black citizens to deny or burden their ability to vote.

The VRA became the most effective piece of federal

civil rights legislation in this country’s history. See

Nw. Austin, 557 U.S. at 198, 201 (the “historic

accomplishments of the [VRA] are undeniable”). The

VRA’s approach to voting discrimination was

comprehensive and carefully constructed to enforce

the principles of the Fourteenth and Fifteenth

Amendments

to

the

Constitution.

Through

prophylactic and remedial measures, the VRA

outlawed the most egregiously discriminatory voting

tests and devices, including literacy and good

character tests, see 52 U.S.C. § 10303(a)(1), that

prevented Black people from registering to vote. The

VRA also provided litigants with the tools to challenge

any other new voting laws or policies that resulted in

vote dilution or vote denial. The VRA’s success derives

from its prohibition on voting practices that tend to

interact with the effects of racial discrimination in

other areas of life to deny or abridge the right to vote.

Since its enactment, the VRA has deployed two

primary means of combatting racial discrimination in

voting: Section 2’s general, nationwide ban on

discriminatory voting laws and Section 5’s limited-

5

jurisdiction preclearance requirement. Both Sections 2

and 5 were intended to reach not only voting practices

that overtly limited voting opportunities for minority

voters, but also more subtle laws that interact with

social conditions to perpetrate discrimination.

In Shelby County, this Court rendered preclearance

inoperative, thus weakening the statute and

unleashing jurisdictions, including Arizona, to pass

new voting rules that hinder voters of color’s rights.

Shelby Cty., 570 U.S. at 530. The Court emphasized,

however, that the Shelby County decision “in no way

affects the permanent, nationwide ban on racial

discrimination in voting found in [Section] 2.” Id. at

557. “Section 2 is permanent, applies nationwide,” and

broadly “forbids any ‘standard, practice, or procedure’

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.’” Id. at 536–37 (quoting 52 U.S.C. §

10301(a)).

Since Shelby County, plaintiffs have relied

primarily on Section 2 to block and remedy new

discriminatory measures. Although less effective than

Section 5 in important ways, Section 2 broadly

“prohibits all forms of voting discrimination.” Gingles,

478 U.S. at 45 n.10. The plain statutory text prohibits

“any ‘standard, practice, or procedure’ that ‘results in

a denial or abridgment’” of the right to vote on account

of race. Shelby Cty., 570 U.S. at 537 (quoting 52 U.S.C.

§ 10301(a)) (emphasis added). In assessing the

discriminatory result of a voting law or policy, Section

2 requires courts to consider the “totality of

circumstances.” 52 U.S.C. § 10301(a), (b). The statute

neither enumerates nor confines the “totality of

6

circumstances” requirement. The inquiry is both broad

and intensely fact-based, requiring courts to conduct a

“searching practical evaluation of the past and present

reality [with] a functional view of the political

process.” Gingles, 478 U.S. at 45. In conducting the

totality of circumstances analysis, courts look to nine

congressionally delineated factors (the “Senate

Factors”) drawn from the 1982 Senate Report, S. Rep.

97-417 at 28–29 (“Senate Report”). The Gingles Court

recognized the Senate Report as the “the authoritative

source for legislative intent” on the VRA. See id. at 43–

46, n.7. But these factors are “neither comprehensive

nor exclusive;” courts are not required to use any or all

of them, or to find that most of them weigh for or

against a finding of a Section 2 violation. Id. at 45. The

analysis is meant to reveal the presence or absence of

a causal link between the challenged practice’s racially

discriminatory impact and the “social and historical

conditions” of the jurisdiction in which the practice

operates. Id. at 47. The inquiry is intended to

expansively capture facially race-neutral election laws

that operate with past and present social conditions to

deny or abridge the right to vote.

Section 2’s text, history, and purpose directly

undercut Petitioners’ and their Amici’s argument that

the statute prohibits only voting laws that interact

with racial discrimination, and the effects thereof,

committed by the government defendant to cause

significant disparities in access to the franchise. See

State Pet. Br. at 24 (citing Frank v. Walker, 768 F.3d

744, 753 (7th Cir. 2014)); see also United States

Amicus Br. in Supp. of Pet’rs at 21–24 (“U.S. Br.”);

Ariz. Republican Party Pet. for Writ of Cert. at 29–30

(“ARP Br.”). No doubt remedying the effects of state-

7

perpetrated discrimination is one important aim of

Section 2 and the VRA. Many of the Senate Factors are

highly probative of state-sponsored discrimination.

But that is not a limitation contemplated by the text

of Section 2. Rather, the “textual command” of Section

2 is that the presence or absence of a violation be

assessed “based on the totality of circumstances.”

Johnson v. DeGrandy, 512 U.S. 997, 1018 (1994)

(citing 52 U.S.C. § 10303(b)).

For decades, this Court has also accepted that

actions of the government defendant—either in

passing and implementing the challenged voting rule

or in historical acts of discrimination—is not to be

considered in a vacuum and is not itself dispositive of

the Section 2 inquiry. See, e.g., LULAC, 548 U.S. at

438–40 (finding that a voting scheme violated Section

2 in the context of Latino voters’ increasing political

activity and electoral cohesion and “the ‘political,

social, and economic legacy of past discrimination’”

against “Latinos in Texas’”) (citations omitted); Rogers

v. Lodge, 458 U.S. 613, 624–25 (1982) (assessing

discrimination by state and local actors and private

political parties in a Section 2 and constitutional

challenge to a county’s election system). For example,

in Gingles, this Court affirmed a finding that “racial

discrimination in public and private facility uses,

education, employment, housing and health care,”

including “public and private employment” disparities,

had hindered Black voters’ “ability to participate

effectively in the political process.” Gingles v.

Edmisten, 590 F. Supp. 345, 361–62 (E.D. N.C. 1984)

(three-judge court) (emphasis added), aff’d in relevant

part at Gingles, 478 U.S. at 38.

8

A holding limiting the Section 2 inquiry to the

discrimination committed or sanctioned by the

government defendant would flout Section 2’s plain

text, depart from settled precedent, and severely

curtail Congress’s intended broad application of

Section 2. It would also fundamentally shift the focus

of Section 2 from eliminating discrimination in voting

to parsing which actor played what role in contributing

to it. The line between state-sponsored, local, or

private discrimination is often hard to delineate.

Unravelling who perpetrated what discrimination is a

daunting and burdensome—if not impossible—task.

Cf. Missouri v. Jenkins, 491 U.S. 274, 276 (1989)

(describing the costly, protractive litigation necessary

to determine whether federal, state, or local officials

were responsible for racial discrimination in Kansas

City schools). By contrast, adhering to decades of

precedent in which state and private acts of

discrimination are considered will not create new

liability, threaten existing election laws, or guarantee

Section 2 plaintiffs’ widespread victory across

jurisdictions, as Petitioners argue. The totality of

circumstances analysis is a limitation on this kind of

liability because it requires courts to conduct an

extremely local and fact-intensive inquiry into the

specific conditions in the jurisdiction at issue. This

time-tested mode of inquiry necessarily limits the

reach of discrete Section 2 challenges and reinforces

the VRA’s causation requirement by examining the

local context in which specific voting laws operate.

This Court should affirm.

9

ARGUMENT

Section 2 of the VRA is an essential tool in the fight

against racial discrimination in voting. Section 2’s text

prohibits all voting practices and laws that, under the

“totality of circumstances,” result in a denial or

abridgment of the right to vote. 52 U.S.C. § 10301(a),

(b). The totality of circumstances analysis is critical, as

it reveals the presence or absence of a causal link

between

the

challenged

practice’s

racially

discriminatory impact and the social and historical

conditions of the jurisdiction in which the practice

operates. This inquiry captures those facially raceneutral laws that may interact with social and political

conditions to abridge the right to vote based on race.

I.

Since Shelby County, Section 2 Is the

Primary Provision Used to Challenge

Election Laws that Have a Discriminatory

Result.

The VRA “had a dramatic effect in increasing the

participation of black citizens in the electoral process,

both as voters and elected officials.” Briscoe v. Bell, 432

U.S. 404, 405 (1977); see also Shelby Cty., 570 U.S. at

547–48 (showing that Black voter registration in

Alabama climbed from 19 percent to 73 percent

between 1965 and 2004). Its passage represented a

significant, though delayed, step forward in the longfought and ongoing struggle to achieve racial equality

in access to the ballot box and political representation.

Section 2, along with Section 5, have played an

integral role in eliminating and deterring the most

blatant forms of voting discrimination. Today, Section

2 is the leading tool used to combat new and evolving

10

efforts to leverage historical, social, and political

conditions to suppress Black voting power.

a. The VRA’s Passage Came After

Decades of States Implementing

Facially Race-Neutral Election Laws

That Interacted with the SocioEconomic Conditions of Black

People to Deny Their Right to Vote.

Following the end of Reconstruction, Black

Americans experienced the gamut of harrowing vote

suppression tactics, many of which had as their

lynchpin the social stratification of that ignominious

period—with recently freed Black citizens heavily

reliant on their white counterparts for employment,

with limited access to educational opportunities, and

subject to wanton discrimination and violence. After

1890, Southern state legislatures “resort[ed] to facially

neutral tests that took advantage of differing social

conditions” between Black and white voters.

Underwood v. Hunter, 730 F.2d 614, 619 & n.10 (11th

Cir. 1984) (citation omitted). These facially raceneutral tests included property qualifications, literacy

tests, residency and employment requirements, and

poll taxes. Id. Each of these devices sought to use the

effects of public and private discrimination in

education, employment, and housing to make it more

difficult for Black people to vote.

In the 1890s, for example, most Southern States

enacted literacy tests as preconditions to registering to

vote or voting. Southern legislators knew that, at that

time, “more than two-thirds of the adult Negroes were

illiterate while less than one-quarter of the adult

11

whites were unable to read.” Katzenbach, 383 U.S. at

310–11. This disparity was largely because it was

illegal to teach enslaved Black people to read. Id. at

311 n.10. Even after Emancipation, States severely

underfunded and racially segregated schools, with

schools attended by Black people often the targets of

intense violence by private and state actors. See

Arnold Rose, The Negro in America 117–118 (Harper,

1948) (describing Southern, white-controlled school

authorities’ strategies for underfunding schools

attended by Black students to maintain white

dominance). Thus, while literacy tests and similar

rules were facially race-neutral, they would interact

with other public and private discrimination to

prevent Black people from voting.

b. Section 2’s Broad Proscription of

Discriminatory Voting Laws Has

Become More Necessary Since This

Court’s Decision in Shelby County.

In 1965, Congress passed the VRA “not only” to

correct this “active history of discrimination, the

denying of [Black people] the right to register and to

vote, but also to deal with the accumulation of

discrimination.” Senate Report, at 5. Congress crafted

the VRA to comprehensively address voting

discrimination and enforce the Reconstruction

Amendments; through prophylactic and remedial

measures, the VRA outlawed the most egregiously

discriminatory voting tests and devices, including

literacy and good character tests. 52 U.S.C. §

10303(a)(1). But the Act’s primary provisions—

Sections 2 and 5—were two of the most important

“weapons in the Federal Government’s formidable

12

arsenal.” Reno v. Bossier Par. Sch. Bd., 520 U.S. 471,

477 (1997). Each one targeted voting schemes that

interacted with historical and ongoing discrimination

to impede Black people from voting.

From 1965 until 2013, Section 5 required

jurisdictions with the most egregious histories of

discrimination to satisfy a preclearance process. See 52

U.S.C. § 10304(a). Under that process, those

jurisdictions were required to obtain federal approval

before implementing any potentially discriminatory

voting-related changes. 52 U.S.C. § 10304(a), (b). “The

specific purpose of § 5 was to prevent these

jurisdictions from continuing the pervasive practice of

adopting new voting procedures which perpetuated

existing discrimination.” City of Lockhart v. United

States, 460 U.S. 125, 139 (1983) (Marshall, J.,

concurring in part and dissenting in part) (emphasis

added). And “promot[ing] the attainment of voting

equality by preventing the adoption of new voting

procedures which perpetuate past discrimination”

remained a core aim of Section 5 each time Congress

reenacted the provision. Id. at 140. 2 After this Court

2 As originally enacted, the coverage provision asked whether,

on November 1, 1964, the state or political subdivision

maintained a “test or device” and whether less than 50 percent of

the voting age population were registered to vote or had voted in

the 1964 presidential election. The original covered jurisdictions

included States within the Deep South and counties in Arizona

and several other states. Shelby, 570 U.S. at 537. Section 4(b) was

subsequently reauthorized in 1970, 1975, 1982, and 2006. In

1975, the entire state of Arizona came within Section 5’s

preclearance requirement because the State had employed

English-only elections and had less than 50 percent voter

registration or turnout as of 1972. Id.

13

found Section 4 unconstitutional in Shelby County,

Section 5 became unenforceable until Congress enacts

a new coverage provision to identify the covered

jurisdictions.

But Section 2’s “permanent, nationwide ban on

racial discrimination in voting” was in “no way”

affected by the Shelby County decision. 570 U.S. at

537. Section 2 bars any “voting qualification or

prerequisite to voting or standard, practice, or

procedure . . . which results in a denial or

abridgement” of the right to vote on account of race,

color or language minority status. 52 U.S.C. §

10301(a). Similar to Section 5’s purpose, Section 2 was

an “attempt to do something about accumulated

wrongs and the continuance of the wrongs.” Senate

Report, at 5. Although much of the case law around

Section 2 concerns its application in vote-dilution

claims because of the effectiveness of Section 5 in

blocking vote-denial schemes until Shelby County,

Section 2’s text has long encompassed vote-denial

claims where, as here, a state employs a “standard,

practice, or procedure” that results in the denial or

abridgement of the right to vote based on race. 52

U.S.C. § 10301(a); Chisom, 501 U.S. at 398 (“The

results test mandated by the 1982 amendment is

applicable to all claims arising under § 2.”). Section 2

encompasses “direct, over[t] impediments to the right

to vote [and] more sophisticated devices.” DeGrandy,

512 U.S. at 1018 (citation omitted).

Since 1965, courts have entertained vote-denial

claims regarding a broad range of practices, including

inequalities in access to voter registration, League of

Women Voters of N.C. v. North Carolina (“LWV”), 769

14

F.3d 224 (4th Cir. 2014); Operation PUSH, 932 F.2d at

408; changes to early voting and polling locations,

Allen v. Waller Cty., 472 F. Supp. 3d 351 (S.D. Tex.

2020); Sanchez v. Cegavske, 214 F. Supp. 3d 961, 973

(D. Nev. 2016); Spirit Lake Tribe v. Benson Cty., No.

2:10-CV-095, 2010 WL 4226614 (D.N.D. Oct. 21, 2010);

voter purges, Toney v. White, 488 F.2d 310 (5th

Cir.1973); Allen v. City of Evergreen, No. 13-0107, 2014

WL 12607819 (S.D. Ala. Jan. 13, 2014); property

qualifications, Smith v. Salt River Project Agric.

Improvement & Power Dist., 109 F.3d 586 (9th Cir.

1997); Murray v. Kaple, 66 F. Supp. 2d 745 (D.S.C.

1999); English-literacy requirements, P.R. Org. for

Political Action v. Kusper, 490 F.2d 575 (7th Cir.1973);

United States v. Berks Cty., 277 F. Supp. 2d 570 (E.D.

Pa. 2003); Hernandez v. Woodard, 714 F. Supp. 963

(N.D. Ill. 1989); notary requirements, People First,

2020 WL 5814455, at *68; Goodloe v. Madison Cty. Bd.

of Elect. Comm’rs, 610 F. Supp. 240 (S.D. Miss. 1985);

and practices related to election workers, United

States v. Brown, 561 F.3d 420 (5th Cir. 2009); Coal. for

Educ. in Dist. One v. Bd. of Elections, 495 F.2d 1090

(2d Cir. 1974); Harris v. Siegelman, 695 F. Supp. 517

(M.D. Ala. 1988). In assessing a challenged practice,

courts often consider whether the alleged voting

discrimination results from its interaction with public

and private socio-economic discrimination. See, e.g.,

LWV, 769 F.3d at 245–46 (finding that the racial

impact of eliminating same-day registration was

“clearly linked” to socioeconomic discrimination);

Berks Cty., 277 F. Supp. 2d at 581 (finding that

English-only elections resulted in “substantial

barriers” for Spanish-speaking voters who “suffer from

significant socioeconomic inequality, which is

15

ordinarily linked to lower literacy rates, [and] unequal

educational opportunities”).

Prior to 2013, Section 5 was largely effective at

“tamping down vote denial in covered jurisdictions.”

LWV, 769 F.3d at 239. Since Shelby County, however,

voters of color have confronted new voting rules that

make it harder for them to vote. No longer obligated to

satisfy

preclearance,

the

formerly

covered

jurisdictions immediately began enforcing voting rules

that would have been or were blocked by Section 5 and

which Section 2 subsequently has been effective at

curbing.

For example, on June 25, 2013, the same day as the

Shelby County decision, Texas began enforcing its

voter photo ID law, which was previously blocked

under Section 5. Veasey, 830 F.3d at 227 & n.7. Even

before the photo ID law was passed, a federal court

warned Texas that its law would “have a disparate

impact on minorities and would likely fail the . . .

preclearance requirement.” Id. at 239. In 2016, an en

banc court of the Fifth Circuit affirmed that Texas’s

strict photo ID law had discriminatory results in

violation of Section 2. Id. at 272. Similarly, a court

found that the sweeping new voting restrictions that

North Carolina began pursuing a day after Shelby

County had intentionally targeted Black voters with

“surgical precision” in violation of Section 2. N.

Carolina State Conf. of NAACP v. McCrory, 831 F.3d

204, 214–16 (4th Cir. 2016); see also Patino v. City of

Pasadena, 230 F. Supp. 3d 667, 681–82, 728–29 (S.D.

Tex. 2017) (enjoining an intentionally discriminatory

change in the method of electing a city council, which

Section 5 had blocked, but was pursued a few days

16

after the Shelby County ruling, under Section 2 and

the Constitution).

Here, too, mere days before the Shelby County

decision and anticipating that its preclearance

obligations would be removed, Arizona began pursuing

the now Section 2-challenged out-of-precinct rule—

which Arizona previously withdrew from a

preclearance request after the Department of Justice

learned that the policy appeared to target

predominantly Latino areas. See Dem. Nat’l Comm. v.

Hobbs, 948 F.3d 989, 1008 (9th Cir. 2020) (en banc).

Without the preclearance requirement, Section 2 is

the primary tool for combating racial discrimination in

access to the political process. Section 2’s ability to

identify discriminatory voting laws continues to

require an assessment of the full local context in which

those laws operate, including discriminatory acts of

government defendants and other actors.

II.

Section 2’s Text, History, and Purpose

Prohibit Voting Measures That Interact

with Social or Historical Discrimination

Outside the Electoral Sphere to Burden

Black Voters’ Access to the Franchise.

a. This Court Has Interpreted the Plain

Text of Section 2 to Broadly Prohibit

Election Laws That Interact with

Social and Historical Conditions to

Deny the Right to Vote.

In 1982, Congress amended Section 2 to “adopt[] a

results test,” Chisom, 501 U.S. at 395; the statute now

proscribes any “voting qualification or prerequisite to

17

voting or standard, practice, or procedure . . . which

results in a denial or abridgment of the right of any

citizen . . . to vote on account of race or color.” 52 U.S.C.

§ 10301(a). 3 Under subsection (b), an unlawful result

is established where, under the “totality of

circumstances,” it is “shown that the political

processes leading to nomination or election . . . are not

equally open . . . in that . . . 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). The key

aim of Section 2 is to determine “whether as a result of

the challenged practice or structure plaintiffs do not

have an equal opportunity to participate in the

political processes and to elect candidates of their

choice.” Gingles, 478 U.S. at 44. To answer that

question, the statute mandates that courts consider

the “totality of circumstances” to evaluate the

openness of the voting process to minority voters. Id. §

10301(b).

This totality of circumstances inquiry is farreaching and “springs from the demonstrated

ingenuity of state and local governments in hobbling

3 Prior to 1982, this statute was interpreted by this Court in

City of Mobile v. Bolden, 446 U.S. 55 (1980), to require a showing

of discriminatory intent. The 1982 amendments explicitly added

the results test. Thus, although proof of intent is not required

under Section 2, plaintiffs can still sustain a Section 2 challenge

by proving racially discriminatory intent. See Chisom, 501 U.S.

at 394 n.21 (stating that to establish a Section 2 violation,

“Plaintiffs must either prove such intent, or, alternatively, must

show that the challenged system or practice, in the context of all

the circumstances in the jurisdiction in question, results in

minorities being denied equal access to the political process”).

18

minority voting power.” DeGrandy, 512 U.S. at 1018.

States have often capitalized on Black voters’

diminished economic standing to deny them the right

to vote through property requirements and poll taxes.

Id. Section 2 thus “covers every application of a

qualification, standard, practice, or procedure that

results in a denial or abridgment of ‘the right’ to vote.”

Chisom, 501 U.S. at 397 (emphasis added).

“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.” Gingles, 478 U.S. at 47. This Court has thus

instructed that lower courts should conduct “a

searching practical evaluation of the past and present

reality” within the jurisdiction to determine whether

an electoral practice results in a discriminatory denial

or abridgment of the right to vote. Id. at 45.

In light of Section 2’s broad application to voting

laws that result in minority voters “hav[ing] less

opportunity than other members of the electorate to

participate in the political process and to elect

representatives of their choice,” and this Court’s

instruction that Section 2 claims are intended to

ascertain how an election law interacts with social and

historical conditions to cause a discriminatory result,

most circuits have devised a two-part framework for

Section 2 vote-denial claims. See Veasey, 830 F.3d at

273. Under this framework, a plaintiff must show that:

(1) the challenged policy imposes a discriminatory

burden on people of color, meaning that they “have less

opportunity than other members of the electorate to

participate in the political process and to elect

19

representatives of their choice,” 52 U.S.C. § 10301(b);

and (2) that burden “must in part be caused by or

linked to ‘social and historical conditions’ that have or

currently produce discrimination against members of

the protected class.” Gingles, 478 U.S. at 47. These

courts have found the following nine objective factors,

outlined in the Senate Report, useful in determining

whether there exists a sufficient causal link between

the discriminatory burden imposed and the social and

historical conditions produced by discrimination:

1. The

history

discrimination

subdivision;

of

official

voting-related

in the State or political

2. The extent to which voting in the elections of the

State or political subdivision is racially

polarized;

3. The extent to which the State or political

subdivision has used voting practices or

procedures that tend to enhance the

opportunity for discrimination against the

minority group;

4. The exclusion of members of the minority group

from the candidate slating processes;

5. The extent to which minority group members

bear the effects of discrimination in areas such

as education, employment, and health, which

hinder their ability to participate effectively in

the political process;

6. The use of overt or subtle racial appeals in

political campaigns;

20

7. The extent to which members of the minority

group have been elected to public office in the

jurisdiction;

8. Whether there is a significant lack of

responsiveness on the part of elected officials to

the particularized needs of the members of the

minority group; and

9. Whether the policy underlying the State or

political subdivision’s use of the challenged

voting practice is tenuous.

Id. at 44–45. See, e.g., Veasey, 830 F.3d at 244; LWV,

769 F.3d at 240; Mich. State A. Philip Randolph Inst.

v. Johnson (“Johnson”), 833 F.3d 656, 667 (6th Cir.

2016); Gonzalez v. Arizona, 677 F.3d 383, 405–06 (9th

Cir. 2012) (en banc); Burton v. City of Belle Glade, 178

F.3d 1175, 1197–98 (11th Cir 1999). The Senate

Factors are “useful in examining both elements of the

two-part test, especially the causal linkage between

disparate impacts and conditions of discrimination.”

Veasey, 830 F.3d at 245 n.34 (citing LWV, 769 F.3d at

240, 245). These factors are non-exhaustive tools for

using the Section 2 framework to ensure “there is a

sufficient causal link between the disparate burden

imposed and social and historical conditions produced

by discrimination.” Veasey, 830 F.3d at 245.

Although Section 2 does not require intentional

discrimination by state actors, many of the Senate

Factors are probative of such discrimination. Indeed,

the Senate Factors are derived from those

circumstances that this Court has found relevant to

identifying unconstitutional discrimination. See White

v. Regester, 412 U.S. 755 (1973); Zimmer v. McKeithen,

21

485 F.2d 1297 (5th Cir. 1973) (en banc), aff’d sub. nom.

on other grounds East Carroll Par. Sch. Board v.

Marshall, 424 U.S. 636 (1976).

This, in part, reflects the fact that there is rarely a

clean line between “official” and “private”

discrimination that interacts with a specific voting

practice to burden access to the franchise based on

race. In the Jim Crow-Era, for example, only

widespread private discrimination in housing and

employment could ensure the effectiveness of “gainful

employment or property” requirements. Underwood,

730 F. 2d at 619 n.10; see also Rogers, 458 U.S. at 625

(noting

a

property

requirement’s

racially

discriminatory impact).

b. Section

2

Examines

All

Circumstances Bearing on the Issue

of the Causal Link Between Social

and Historical Conditions and a

Challenged

Voting

Practice’s

Discriminatory Result.

Section 2’s flexible “totality of circumstances”

standard allows the consideration of the Senate

Factors individually, applying only those that are

relevant to a particular case. Veasey, 830 F.3d at 256–

65 (affirming a Section 2 discriminatory results

finding based on this Court’s analysis of four of the

relevant Senate Factors); LWV, 769 F.3d at 245–47

(applying three of the relevant Senate Factors to

identify a Section 2 violation). Any number of the

factors or other non-enumerated circumstances might

contribute to the existence of a Section 2 vote-denial

22

claim. “[N]o one factor has determinative weight.”

Veasey, 830 F.3d at 246 (citing Gingles, 478 U.S. at 45).

Petitioners argue that the Senate Factors have no

place in the vote-denial context and are inconsistent

with the causal nexus requirement under Section 2.

State Pet. Br. at 23; see also id. at 16, 32–33, 40, 43. 4

This is because, Petitioners and certain Amici argue,

the Senate Factors are only appropriate in the votedilution context, and because Section 2’s totality of

circumstances inquiry is about determining whether

“the substantial disparate impact arises from the

state’s actions rather than those of other persons.” Id.

at 24; see id. (“Section 2’s robust causality requirement

. . . thus protects defendants from being held liable for

racial disparities they did not create.”). See also U.S.

Br. at 21–24; ARP Br. at 29–30. Petitioners are wrong

for three main reasons.

First, to the extent Petitioners’ argument is

premised on differences between vote-dilution and

vote-denial claims, their argument is foreclosed by the

text of Section 2, which does not distinguish between

claims based on denial versus dilution. See generally

52 U.S.C. § 10301; see also Gingles, 478 U.S. at 45, n.10

(“Section 2 prohibits all forms of voting discrimination,

not just vote dilution.”). So, while some Senate Factors

may be more relevant in dilution cases, id. at 48 n.15,

nothing in the text of the statute would permit dilution

4 The United States as amicus does not appear to support this

argument. See U.S. Br. at 31 (arguing that “[t]o the extent any of

the Senate Factors bear on the proper Section 2 inquiry in a

particular case, courts may consider them among the ‘totality of

circumstances’, 52 U.S.C. 10301(b)”).

23

cases to have one causation standard that considers

social and historical discrimination and its interaction

with a voting practice and require a different standard

in denial cases. The basic “totality of circumstances”

standard is the same because the text, on its face,

broadly encompasses both types of claims. 52 U.S.C. §

10301(b).

Second, Section 2 is not limited to remedying only

the discriminatory results of voting practices that

interact with official discrimination perpetrated by

government defendants. Surely, that is one goal. Some

of the Senate Factors focus on official acts of

discrimination. See, e.g., Gingles, 478 U.S. at 36–37

(noting that the first factor probes the “history of

official discrimination in the state or political

subdivision”) (emphasis added).

But other factors do not. Indeed, “the literal

language of the fifth Senate Factor does not even

support the reading that only discrimination by [the

governmental defendant] may be considered; the

limiting language describes the people discriminated

against, not the discriminator.” Gomez v. City of

Watsonville, 863 F.2d 1407, 1418 (9th Cir. 1988); see

also Gingles, 478 U.S. at 69 (observing that the fifth

Senate Factor considers “the extent to which members

of the minority group . . . bear the effects of

discrimination in such areas as education,

employment and health”). And “under the results

standard of [S]ection 2, pervasive private

discrimination should be considered, because such

discrimination can contribute to the inability of blacks

to assert their political influence and to participate

equally in public life.” United States v. Marengo Cty.

24

Comm’n, 731 F.2d 1546, 1567 n.36 (11th Cir. 1984)

(Wisdom, J.); see also Janai Nelson, The Causal

Context of Disparate Vote Denial, 54 B.C.L. Rev. 579,

596 (2013).

Importantly, this Court has held that the

enumerated

Senate

Factors

are

“neither

comprehensive nor exclusive.” Gingles 478 U.S. at 45.

“Thus, even if the first factor does embrace only

discrimination committed by [the government

defendant], that does not imply that the district court

may not consider any relevant history or effects of

discrimination committed by others.” Gomez, 863 F.2d

at 1418. Courts often consider private and public

discrimination perpetrated by those other than the

government defendant in assessing a challenged law’s

discriminatory result. See, e.g., Johnson, 833 F.3d at

668–69. “[T]he source of past pervasive discrimination

does not change its impact on present-day [minority]

access.” McIntosh Cty. Branch of NAACP v. City of

Darien (“McIntosh NAACP”), 605 F.2d 753, 757 & n.5

(5th Cir. 1980).

This reading of Section 2 is also consistent with this

Court’s interpretation of the VRA in the literacy test

cases. In Gaston County v. United States, the Court

upheld a literacy test ban in Gaston County because

discrimination in education had resulted in Black

people being less likely to pass the test. 395 U.S. 285,

297 (1969). The unanimous Court did not require a

proof that the county was the sole perpetrator of

discrimination in education or the only cause of the

relevant racial disparities in literacy. Rather, the

Court saw “no legal significance” in the fact that some

Black residents had likely been educated “in other

25

counties or States also maintaining segregated and

unequal school systems.” Id. at 293 n.9; see also

Oregon v. Mitchell, 400 U.S. 112, 118 (1970); see also

id. at 233–35 (1970) (Op. of Brennan, White, Marshall,

JJ., concurring in part) (unanimously rejecting

Arizona’s argument that, because it purportedly had

not engaged in discrimination in education, Arizona

should be exempt from the VRA’s nationwide literacy

test ban).

Petitioner’s more “restrictive reading places too

much emphasis on the plaintiff’s ability to prove

intentional discrimination.” Gomez, 863 F.2d at 1418;

see also McIntosh NAACP, 605 F.2d at 759 n.5 (noting

that distinctions between discrimination by a

governmental defendant versus others is only relevant

when inferring intent).

The text of Section 2 does not impose any stateaction limitation. See generally 52 U.S.C. § 10301. But

see State Pet. Br. at 24 (arguing that Section 2’s

application to “any State or political subdivision”

imposes an “express textual limit” on the totality of

circumstances analysis). Section 2(b)’s reference to the

“State or political subdivision” is merely a

jurisdictional limitation and does not alter the scope of

Section 2’s analysis. Cf. Morse v. Republican Party of

Va., 517 U.S. 186, 220 (1996) (concluding that the

similar use of the phrase “State or political

subdivision” in Section 5 of the VRA has a “territorial

reach that embrace[s] actions that are not formally

those of the state,” including actions of political

parties).

Nothing in the text of Section 2 or the Senate

Report suggests that Section 2’s aim is to ferret out the

26

effects of discrimination perpetrated by government

defendants versus others on minority voters’ ability to

vote. It would be improper and illogical to extrapolate

from that language a limitation on evidence of

discrimination that includes only state action,

especially when the Senate Factors on which courts

have relied for decades expressly include actions that

may involve non-state actors. Thus, the statute

imposes no state-action limitation. Under the text’s

“totality of circumstances” analysis, “the actions of the

members of the voting community as a whole, not just

the conduct of officials responsible for designing or

maintaining the electoral structure at issue, are

relevant to inquiries into discrimination in the voting

process.” Nipper v. Smith, 39 F.3d 1494, 1518 (11th

Cir. 1994) (en banc) (Tjoflat, C.J.).

Third, in vote denial cases, the analysis of the

“totality of circumstances,” 52 U.S.C. 10301(b),

through the Senate Factors reflects “Congress’s intent

to provide courts with a means of identifying voting

practices that have the effect of shifting racial

inequality from the surrounding social circumstances

into the political process.” Navajo Nation Human

Rights Comm’n v. San Juan Cty., 281 F. Supp. 3d

1136, 1166 (citation omitted). Section 2’s analysis of

“whether the political processes are equally open

depends upon a searching practical evaluation of the

past and present reality.” Gingles, 478 U.S. at 45

(citation omitted). This inquiry compels a “fact

intensive” consideration of all circumstances bearing

on how a challenged voting practice might impact

minority voter participation. Id. at 46. “[T]hese factors

are simply guideposts in a broad-based inquiry in

which district judges are expected to roll up their

27

sleeves and examine all aspects of the past and

present political environment in which the challenged

electoral practice is used.” Goosby v. Hempstead, 956

F. Supp. 326, 331 (E.D.N.Y. 1997) (emphasis added).

In vote-denial cases, the first, fifth, and ninth

Senate Factors are “particularly relevant to a vote

denial claim in that they specifically focus on how

historical or current patterns of discrimination”

interact with challenged law. Ohio State Conference of

NAACP v. Husted, 768 F.3d 524, 555 (6th Cir. 2014),

vacated on other grounds, 2014 WL 10384647 (6th Cir.

Oct. 1 2014); see also Hobbs, 948 F.3d at 1014 (en banc)

(citation omitted).

Courts often apply the first and fifth factors to find

that the effects of past and ongoing discrimination in

voting, education, employment, and other areas of life

interact with the challenged provision to hinder the

ability of voters of color to participate in the political

process. See, e.g., Veasey, 830 F.3d at 257–61 (finding

that a photo ID law did “not disproportionately impact

African-Americans and Hispanics by mere chance.

Rather, it does so by its interaction with the vestiges

of past and current racial discrimination”); Johnson,

833 F.3d at 668–69 (accepting that a straight ticket

voting ban could interact with “racist policies such as

redlining and housing discrimination” to cause racial

inequalities in voter wait times); Sanchez, 214 F.

Supp. 3d at 973 (finding that Native Americans had

“greater difficulty” reaching polling places because of

“socioeconomic disparities limiting the ability to

travel” caused by “discrimination and its lingering

effects”); Spirit Lake Tribe, 2010 WL 4226614, at *3

(finding that “pervasive discrimination” against

28

Native Americans contributed to “entrenched

problems of poverty, alcoholism, illiteracy, and

homelessness” that made it harder for them to get to

distant voting locations).

Taken together, the Senate Factors provide a

familiar means of establishing the requisite causal

connection between past discrimination and the

challenged voting rule. Petitioners’ interpretation of

Section 2’s causation inquiry would nearly eviscerate

Section 2’s application to vote denial claims, leaving

rampant voter suppression efforts unchecked and

beyond court review.

c. An Expansive Totality of the

Circumstances Analysis Does Not

Threaten

States’

ElectionAdministration Autonomy.

Recognizing a strict state-action limitation would

be inconsistent with the plain text of Section 2, which

on its face contains no such limitation. See 52 U.S.C. §

10301. It would depart from this Court’s settled

precedent, which has consistently interpreted Section

2 to broadly proscribe voting laws that interact with

all “social and historical conditions” to cause unequal

voting opportunities for Black people. Gingles, 478

U.S. at 47. It would severely curtail Congress’s

expansive purpose of eliminating discrimination in

voting and contravene its directive to conduct a

“searching practical evaluation of the past and present

reality” to determine whether minority voters have an

equal opportunity to vote. See id. at 45 (quoting Senate

Report, at 30). Most importantly, it would task district

courts with unravelling the interconnected web of

discrimination perpetrated by state and local actors,

29

an unduly burdensome task that fundamentally shifts

the focus of Section 2 from eliminating racial

discrimination in voting to parsing which actor played

what role in contributing to it. Cf. Jenkins, 491 U.S. at

276 (describing the costly, protractive litigation

necessary to determine whether federal, state, or local

officials were responsible for racial segregation in

Kansas City schools).

Contrary to Petitioners’ arguments, the searching

totality of circumstances analysis that Section 2

requires does not mean that any bare statistical

disparity in voting opportunities can sustain a Section

2 challenge, or that the totality of circumstances

analysis would render unlawful all voting policies and

procedures that result in some disparities in voting.

See Pet. Br. 32, 35. Section 2’s “results” test is not an

easy test for plaintiffs to satisfy. See Senate Report, at

31.

Petitioners speculate that, if this Court affirms the

Section 2 violation, then similar election laws across

the country will also fall in droves. This is false.

“[E]lectoral devices . . . may not be considered per se

violative of § 2. Plaintiffs must demonstrate that,

under the totality of circumstances, the devices result

in unequal access to the electoral process.” Gingles,

478 U.S. at 46. That is, in each challenge to an election

rule, plaintiffs must successfully prove that, under the

totality of circumstances, the challenged rule violates

Section 2. No two states or jurisdictions have identical

social and historical backgrounds, demographics, and

electoral contexts. Thus, even if a particular voting

rule violates Section 2 in one state, it might be upheld

in another. See LWV, 769 F.3d at 243–44 (explaining

30

that, given the “intensely local” review, a finding that

a rule violated Section 2 in one State would not “throw

other states’ election laws into turmoil”).

History confirms this truth. For example, despite

some success in challenging voter ID laws in Texas and

North Carolina, Veasey, 830 F.3d at 272; McCrory, 831

F.3d at 241–42, plaintiffs have failed in Section 2

challenges to voter ID laws in multiple other states.

See, e.g., Greater Birmingham Ministries, 966 F.3d

1202 (rejecting plaintiffs’ Section 2 challenge to

Alabama’s voter ID law); Lee v. Va. State Bd. of

Elections, 843 F.3d 592 (4th Cir. 2016) (upholding

Virginia’s photo ID law); Frank, 768 F.3d 744

(concluding that Wisconsin’s photo ID law did not

violate Section 2); Gonzalez, 677 F.3d at 407. To

suggest that continuing to follow decades of precedent

will result in a deluge of Section 2 victories concerning

specific voting practices across jurisdictions is

disingenuous and ahistorical.

***

As this Court recently reminded, “voting

discrimination still exists; no one doubts that.” Shelby

Cty., 570 U.S. at 536. Black Americans know it best,

having been subjected to ever-evolving forms of voting

discrimination (i.e., old poison in new bottles) since

first securing the right to vote. Section 2 remains one

of the few available and effective tools that Black

voters have to address racial discrimination in voting

in the electoral arena. It is imperative that this Court

continue to construe Section 2 expansively, as

Congress intended. Only that way can the VRA’s

original purpose of ridding the political process of

racial discrimination be fulfilled.

31

CONCLUSION

For the foregoing reasons, this Court should affirm.

Respectfully submitted,

SHERRILYN A. IFILL

JANAI S. NELSON

SAMUEL SPITAL

LEAH C. ADEN*

DEUEL ROSS

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., Fifth Floor

New York, NY 10006

(212) 965-2200

laden@naacpldf.org

MAHOGANE D. REED

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14th St., NW

Suite 600

Washington, DC 20005

(202) 682-1300

COUNSEL FOR AMICUS

CURIAE NAACP LEGAL

DEFENSE & EDUCATIONAL

FUND, INC.

* COUNSEL OF RECORD

January 20, 2021