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

Supreme Court briefJan 20, 2021

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Nos. 19-1257 and 19-1258

IN THE

MARK BRNOVICH, ATTORNEY GENERAL OF ARIZONA, ET

AL., PETITIONERS

DEMOCRATIC NATIONAL COMMITTEE, ET AL.

ARIZONA REPUBLICAN PARTY, ET AL., PETITIONERS

DEMOCRATIC NATIONAL COMMITTEE, ET AL.

On Writs of Certiorari to the United States Court

of Appeals for the Ninth Circuit

BRIEF FOR NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE AND

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

UNDER LAW AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

DAMON HEWITT

JON M. GREENBAUM

EZRA D. ROSENBERG

POOJA CHAUDHURI

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1500 K Street NW

Suite 900

Washington, DC 20005

KATHLEEN R. HARTNETT

Counsel of Record

COOLEY LLP

101 California Street

San Francisco, CA 94111

(415) 693-2071

khartnett@cooley.com

ADAM S. GERSHENSON

COOLEY LLP

500 Boylston Street

Boston, MA 02116

Counsel for Amici Curiae

Additional Counsel:

BARRETT J. ANDERSON

COOLEY LLP

4401 Eastgate Mall

San Diego, CA 92121

ELIZABETH A. TRAFTON

ADAM M. KATZ

COOLEY LLP

500 Boylston Street

Boston, MA 02116

ELIAS S. KIM

COOLEY LLP

1299 Pennsylvania Ave., NW

Washington, DC 20004

JANETTE M. LOUARD

NATIONAL ASSOCIATION FOR

THE ADVANCEMENT OF

COLORED PEOPLE

4805 Mount Hope Drive

Baltimore, MD 21215

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ..................................... 1

INTRODUCTION ....................................................... 2

SUMMARY OF ARGUMENT .................................... 4

ARGUMENT............................................................... 7

II.

SECTION 2 POSES NO

CONSTITUTIONAL ISSUES. ........................ 7

Section 2 Must Be Broadly

Construed in Order to Combat

Pernicious Discrimination. ................... 8

Section 2 Raises No “Congruence

and Proportionality” Concerns;

the Rational Basis Test Applies. ........ 12

Section 2 Raises No Federalism

Concerns. ............................................. 14

Section 2 Raises No Equal

Protection Concerns. ........................... 16

THERE IS NO REASON TO DISTURB

A VOTE-DENIAL STANDARD THAT

HAS BEEN ADOPTED BY FOUR

CIRCUITS, ADHERES TO THIS

COURT’S PRECEDENT, AND HAS

BEEN SMOOTHLY FUNCTIONING

FOR DECADES. ............................................ 17

Section 2 Applies to All VoteDenial and Abridgement Claims,

Not Just Those Going to Voter

Qualifications. ..................................... 20

TABLE OF CONTENTS

(continued)

Page

Section 2 Vote-Denial Claims Are

Not Limited to Cases Where the

Discriminatory Act Affected the

Election Outcome. ............................... 22

The Senate Factors Are

Applicable to Section 2 VoteDenial Claims. ..................................... 23

Proof of Impact in a Section 2

Vote-Denial Case Is Not Limited

to that Caused by the Challenged

Law Independent of SocioHistorical Conditions of

Discrimination..................................... 25

The Ninth Circuit’s Analysis Is

Consistent with Section 2 and

this Court’s Precedent......................... 31

CONCLUSION .......................................................... 34

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Abbott v. Perez,

138 S. Ct. 2305 (2018) .......................................... 16

Allen v. State Bd. of Elections,

393 U.S. 544 (1969) .............................. 8, 21, 22, 26

Anderson v. Celebrezze,

460 U.S. 780 (1983) .............................................. 15

Brown v. Dean,

555 F. Supp. 502 (D.R.I. 1982) ............................. 27

Burdick v. Takushi,

504 U.S. 428 (1992) .............................................. 15

Bush v. Vera,

517 U.S. 952 (1996) .............................................. 16

Chisom v. Roemer,

501 U.S. 380 (1991) ........................ 8, 11, 22, 23, 30

City of Boerne v. Flores,

521 U.S. 507 (1997) .................................. 12, 13, 14

City of Mobile v. Bolden,

446 U.S. 55 (1980) ................................................ 10

City of Rome v. United States,

446 U.S. 156 (1980) .............................................. 13

TABLE OF AUTHORITIES

(continued)

Page(s)

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (2008) .............................................. 33

DNC v. Hobbs,

948 F.3d 989 (9th Cir. 2020) .............. 19, 31, 32, 33

Farrakhan v. Washington,

338 F.3d 1009 (9th Cir. 2003) .............................. 19

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) .............................................. 15

Goosby v. Town Board of the Town of Hempstead,

180 F.3d 476 (2d Cir. 1999) .................................. 30

Harris v. Graddick,

593 F. Supp. 128 (M.D. Ala. 1984) ....................... 27

Johnson v. De Grandy,

512 U.S. 997 (1994) .............................................. 26

Katzenbach v. Morgan,

384 U.S. 641 (1966) .............................................. 13

Lane v. Wilson,

307 U.S. 268 (1939) .......................................... 8, 15

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

769 F.3d 224 (4th Cir. 2014) .......................... 19, 29

Lee v. Va. State Bd. of Elections,

843 F.3d 592 (4th Cir. 2016) .......................... 16, 29

TABLE OF AUTHORITIES

(continued)

Page(s)

Limtiaco v. Camacho,

549 U.S. 483 (2007) .............................................. 20

Lopez v. Monterey Cnty.,

525 U.S. 266 (1999) .............................................. 14

Miss. State Chapter, Operation Push, Inc. v. Mabus,

932 F.2d 400 (5th Cir. 1991) ................................ 27

N.C. State Conf. of NAACP v. McCrory,

831 F.3d 204 (4th Cir. 2016) .................... 26, 27, 29

NAACP v. City of Niagara Falls,

65 F.3d 1002 (2d Cir. 1995) .................................. 30

Octane Fitness, LLC v. ICON Health & Fitness, Inc.,

572 U.S. 545 (2014) .............................................. 26

Ohio Democratic Party v. Husted,

834 F.3d 620 (6th Cir. 2016) ................................ 29

Ohio State Conf. of NAACP v. Husted,

768 F.3d 524 (6th Cir. 2014) ................................ 19

Shelby County v. Holder,

570 U.S. 529 (2013) ................................ 1, 2, 14, 19

Smith v. Salt River Project Agric. Improvement &

Power Distrib.,

109 F.3d 586 (9th Cir. 1997) .......................... 33, 34

TABLE OF AUTHORITIES

(continued)

Page(s)

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ................................ 8, 9, 12, 13

South Carolina v.United States,

898 F. Supp. 2d 30 (D.D.C. 2012) .......................... 8

Spirit Lake Tribe v. Benson Cnty.,

No. 10-cv-095, 2010 WL 4226614 (D.N.D. Oct. 21,

2010)...................................................................... 27

Tennessee v. Lane,

541 U.S. 509 (2004) .............................................. 14

Thornburg v. Gingles,

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

Veasey v. Abbott,

830 F.3d 216 (5th Cir. 2016) .......................... 19, 29

Village of Arlington Heights v. Metropolitan Housing

Development Corp.,

429 U.S. 252 (1977) .......................................... 7, 29

Ex parte Virginia,

100 U.S. 339 (1879) ........................................ 12, 14

Voinovich v. Quilter,

507 U.S. 146 (1993) .............................................. 25

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const.

Art. I ...................................................................... 15

Amend. I ............................................................... 15

Amend. X ................................................................ 3

Amend. XI ............................................................. 15

Amend. XIV ...................................... 7, 8, 12, 13, 15

Amend. XV .....................................................passim

42 U.S.C. § 1973......................................................... 22

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

Pub. L. No. 89-110, 79 Stat. 437 (1967) ...................... 9

Pub. L. No. 97-205, 96 Stat. 131 (1982) .................... 10

LEGISLATIVE MATERIALS

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

reprinted in 2006 U.S.C.C.A.N. 618 .................... 27

H.R. Rep. No. 97-227 (1981) ................................ 11, 22

Nomination of the Hon. Amy Coney Barrett to the

Supreme Court: Hearing Before S. Comm. on the

Judiciary (Oct. 14, 2020) ...................................... 19

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

reprinted in 1982 U.S.C.C.A.N. 177 .............passim

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

OTHER AUTHORITIES

Armand Derfner, Racial Discrimination and the

Right to Vote, 26 Vand. L. Rev. 523 (1973) ........... 9

Janai S. Nelson, The Causal Context of Disparate

Vote Denial, 54 B.C. L. Rev. 579 (2013) .............. 17

Richard Briffault, Lani Guinier and the Dilemmas of

American Democracy, 95 Colum. L. Rev. 418

(1995) .................................................................... 18

Samuel Issacharoff, Voting Rights at 50, 67 Ala. L.

Rev. 387 (2015) ..................................................... 27

Steven L. Lapidus, Eradicating Racial Discrimination

in Voter Registration: Rights and Remedies Under

the Voting Rights Act Amendments of 1982, 52

Ford. L. Rev. 93 (1983) ........................................... 9

Nicholas O. Stephanopoulos, Disparate Impact,

Unified Law, 128 Yale L.J. 1566 (2019) .............. 17

STATEMENT OF INTEREST 1

The National Association for the Advancement of

Colored People (“NAACP”) is a non-profit organization

founded on the goal of achieving an equitable society

for communities of color. Throughout its 111-year

existence, one of the NAACP’s core missions has been

to protect minorities’ right to vote.

For nearly sixty years, the Lawyers’ Committee

for Civil Rights Under Law has fought for the civil

rights of all Americans. The Committee began at the

behest of President John F. Kennedy, who sought to

enlist private attorneys in the battle for civil rights.

Since that time, the Committee has represented

litigants in voting rights cases throughout the nation,

including in cases before this Court, such as Shelby

County v. Holder, 570 U.S. 529 (2013). The Lawyers’

Committee has also participated as amicus curiae in

other significant voting rights cases in this Court, such

as Thornburg v. Gingles, 478 U.S. 30 (1986), a decision

critical to this case.

The NAACP and the Lawyers’ Committee have an

interest in this case because it raises important voting

rights issues central to their missions.

1 No counsel for a party authored this brief in whole or in part,

and no person other than amici and their counsel made a

monetary contribution to this brief’s preparation and submission.

The parties have consented in writing to the filing of this brief

through blanket consent letters.

INTRODUCTION

For over fifty years, Section 2 of the Voting Rights

Act has stood as a bulwark against racial

discrimination in voting. Since this Court’s decision in

Shelby County v. Holder, Section 2 has become even

more indispensable, as the primary line of defense

against both overt and subtle racial discrimination in

voting. The decision below held the line and applied

an oft-used test to identify and stamp out such

discrimination, but Petitioners’ novel approach would

eviscerate the protections that Section 2 has long

provided for minority voters.

The Act, and the Act’s 1982 amendments, have

ensured those protections would stymie not only

blatant, explicit discrimination, but also facially

neutral voting laws that, through ingenious,

sophisticated methods, had a significant impact on

minority citizens’ right to vote. Consistent with the

text and purpose of the Act as amended, this Court and

several of the Circuit Courts of Appeal have adopted a

standard to ensure the effective implementation of

those protections. That standard recognizes that the

Act applies broadly to all voting procedures and

policies that abridge the right to vote—whether

expressly or subtly. The standard also recognizes that

a challenged law cannot be viewed in isolation,

because a seemingly innocuous voting practice can

interact with underlying social conditions to result in

pernicious discrimination.

Under this standard, Section 2 has worked for

decades as a judicially manageable mechanism to stop

voting discrimination. There has been no flood of

questionable Section 2 vote denial cases, and no

widespread invalidation of voting regulations. Indeed,

this case marks the first time since the 1982

amendments to the Act that this Court will review a

pure vote-denial claim. The reason is clear: the lower

courts have taken seriously this Court’s guidance, and

carefully assessed the effects of challenged voting

policies or procedures within each specific jurisdiction,

based on the totality of the circumstances.

Petitioners seek to upend this settled precedent by

invoking a parade of purported constitutional

horribles that they insist can be avoided only by

narrowly construing the Act. But these conjured fears

have no basis in the history of the Act or its

application. Section 2 is a legitimate exercise of

Congress’s power under the Fifteenth Amendment,

which allows Congress to use “any rational means” to

prevent racial discrimination in voting and further

allows Congress to restrict state action without

violating the Tenth Amendment.

Nor is equal

protection offended simply because Section 2

empowers courts to evaluate whether voting laws have

outsized impacts on racial minorities.

The constructions urged by Petitioners would all

but extinguish the Act. Private Petitioners contend

that Section 2 applies principally to voter

“qualification” laws, but this would prevent the Act

from covering the very types of voting laws that

inspired the Act’s passage and the 1982 amendments,

including laws that locate voting precincts far from

minority voters, or curtail registration drives for

voters in areas where minorities are largely

unregistered. And State Petitioners’ approach would

abrogate the Act’s—and this Court’s—command to

consider the “totality of circumstances” and thus

prevent courts from evaluating how voting laws

interact with the real world in which they operate.

That is not what Congress intended. There is no

cause to abandon the established standard, or to bless

the subtle but odious and persistent discrimination

that thwarts the goals of the Framers of the Fifteenth

Amendment and the Congress that passed the Act.

SUMMARY OF ARGUMENT

Racial discrimination in voting diminishes our

democracy. The Voting Rights Act of 1965 (the “Act”

or the “VRA”), and particularly Section 2, have been

indispensable tools in the fight against such

discrimination. Nevertheless, Petitioners seek to

severely narrow Section 2’s reach and utility, claiming

that doing so is necessary to avoid constitutional

issues.

There are, however, no legitimate

constitutional issues to be avoided. The VRA, as a

vehicle for implementing the substantive guarantees

of the Fifteenth Amendment, is subject to rational

basis review, not “congruence and proportionality.”

Plus, Petitioners’ arguments concerning purported

federalism and equal protection concerns lack merit.

Petitioners ignore that the Fifteenth Amendment

specifically authorizes the federal government to

restrict state action and further ignore that this Court

has long held that the VRA’s targeted consideration of

race does not itself run afoul of equal protection

principles. This Court should adhere to its long-held

position that the VRA must be interpreted broadly in

order to fulfill the Act’s constitutional mandate.

The

fundamental

standard

governing

establishment of a Section 2 vote-denial “results”

claim has been settled for decades since this Court’s

decision in Thornburg v. Gingles. That standard has

been applied in recent years by four Circuit Courts of

Appeal and has worked exceedingly well. The test

calls for proof of discriminatory impact and, consistent

with the express wording of the statute, evaluation of

the “totality of circumstances,” which requires

consideration of how the challenged practice interacts

with pre-existing social and historical conditions of

racial discrimination so as to result in a denial or

abridgement of the right to vote.

Contrary to Petitioners’ arguments, Section 2

cannot be construed as prohibiting only restrictions on

voting “qualifications” while giving a free pass to any

regulation that could be labeled a “time, place, or

manner” requirement. The statute’s plain language—

particularly the broad statutory definition of the word

“voting” and the inclusion of “practices” and

“procedures” in the 1982 amendments—preclude that

constrained construction. Moreover, exempting time,

place, or manner requirements from Section 2’s reach

would defeat the VRA’s purpose of capturing complex

and subtle practices which, to this day, perpetuate the

results of past discrimination.

State Petitioners’ contention that a voting practice

violates Section 2 only if it impacts enough voters to

influence an election’s outcome also lacks any

statutory basis. The plain language of Section 2(b)

focuses on the loss of “opportunity” to participate in

the political process and elect representatives of

choice, not the election’s outcome. Further, Section 2’s

legislative history and amendment show that the law

was intended to prohibit vote-denial and abridgement

techniques that make it harder for members of

protected classes to vote, without reference to whether

their participation would affect the outcome of any

given election.

Petitioners are also wrong in claiming that the

Senate Factors, set forth in the Senate Report that

accompanied the 1982 amendments, are somehow

inapplicable to Section 2 vote denial claims. Gingles

made clear that the Senate Factors are probative to

the “totality of [the] circumstances” of vote-denial

cases, just as they are to vote dilution cases.

Petitioners further contend, without basis, that

courts should consider only the impact that the

challenged law itself, in isolation, has on members of

protected classes—and should not consider how the

challenged regulation interacts with social and

historical conditions of racial discrimination. That

argument, however, ignores Section 2’s text, which

demands a consideration of the “totality of

circumstances” to determine whether a voting practice

results in unequal opportunities; disregards the

Senate Report that instructs courts to consider the

extent to which members of a minority group bear the

effects of discrimination; and flouts this Court’s

precedents, which have concluded that the “essence” of

a Section 2 claim is that a certain electoral law

“interacts with social and historical conditions to cause

an inequality.” Gingles, 478 U.S. at 47.

Considering the interaction between the

challenged practice and historical discrimination

furthers Section 2’s goals in at least two primary ways.

First, it ensures a flexible application in which the

challenged law is examined in the context of local

conditions.

Second, it guards against potential

overreach because benign voting practices are, in this

analysis, upheld. By contrast, adopting Petitioners’

approach would insulate from meaningful review even

the most egregious voting restrictions.

The Ninth Circuit’s analysis of the voting

practices at issue in this case is consistent with Section

2 and this Court’s precedent and its judgment should

be affirmed. 2

ARGUMENT

SECTION 2 POSES NO CONSTITUTIONAL

ISSUES.

“The Voting Rights Act of 1965 is among the most

significant and effective pieces of legislation in

American history.

Its simple and direct legal

prohibition of racial discrimination in voting laws and

2 Because the parties agree that Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252 (1977)

governs claims of discriminatory intent, Amici do not address the

Ninth Circuit’s ruling on intent.

practices has dramatically improved the Nation, and

brought America closer to fulfilling the promise of

equality espoused in the Declaration of Independence

and the Fourteenth and Fifteenth Amendments to the

Constitution.” South Carolina v. United States, 898 F.

Supp. 2d 30, 32–33 (D.D.C. 2012) (Kavanaugh, J.).

Despite this recognition that the VRA’s “simple and

direct prohibition” is an established, legitimate means

of fulfilling the promises of the Fourteenth and

Fifteenth Amendments, Petitioners contend that, in

order to avoid constitutional issues, Section 2 must be

construed narrowly. There are, however, no legitimate

constitutional issues to be avoided. To the contrary,

this Court should adhere to its long-held position that

the VRA must “be interpreted in a manner that

provides ‘the broadest possible scope’ in combating

racial discrimination,” in order to fulfill its

constitutional mandate. Chisom v. Roemer, 501 U.S.

380, 403–04 (1991) (quoting Allen v. State Bd. of

Elections, 393 U.S. 544, 567 (1969)).

A. Section 2 Must Be Broadly Construed in

Order to Combat Pernicious Discrimination.

From the ratification of the Fifteenth Amendment

in 1870 through the 1960s, the federal government

tried—and failed—to defeat the “insidious and

pervasive evil” of “racial discrimination in voting,”

which had been “perpetuated . . . through unremitting

and ingenious defiance of the Constitution.” South

Carolina v. Katzenbach, 383 U.S. 301, 308–09 (1966).

Although Justice Frankfurter wrote long ago that the

Fifteenth Amendment targeted “contrivances by a

state to thwart equality in the enjoyment of the right

to vote” and “nullifie[d] sophisticated as well as

simple-minded modes of discrimination[,]” Lane v.

Wilson, 307 U.S. 268, 275 (1939), prior to the VRA’s

passage, this language proved largely aspirational.

See, e.g., Katzenbach, 383 U.S. at 310–15 (describing

pre-VRA efforts to enforce the Fifteenth Amendment).

Responding to the states’ tenacious “ability . . . to

stay one step ahead of federal law,” Congress passed

the VRA to provide a “new weapon[] against

Racial

discrimination.”

Armand

Derfner,

Discrimination and the Right to Vote, 26 Vand. L. Rev.

523, 524–25, 550 (1973) (hereinafter “Right to Vote”).

The Act “reflect[ed] Congress’ firm intention to rid the

country of racial discrimination in voting.”

Katzenbach, 383 U.S. at 315. The essence of the VRA’s

protections was exemplified in Section 2, which

provided: “No voting qualification or prerequisite to

voting, or standard, practice, or procedure shall be

imposed or applied by any State or political

subdivision to deny or abridge the right of any citizen

of the United States to vote on account of race or color.”

Voting Rights Act of Aug. 6, 1965, Pub. L. No. 89-110,

79 Stat. 437, 437.

Notwithstanding Section 2’s broad language,

jurisdictions sought to evade its reach by placing

“heavy emphasis on facially neutral techniques.”

Right to Vote, supra, at 552. These “techniques”

included everything from “setting elections at

inconvenient times” to “causing . . . election day

irregularities” to “moving polling places or

establishing them in inconvenient . . . locations.” Id. at

557–58. In one Mississippi county, voters were forced

to “travel 100 miles roundtrip to register to vote.”

Steven L. Lapidus, Eradicating Racial Discrimination

in Voter Registration: Rights and Remedies Under the

Voting Rights Act Amendments of 1982, 52 Ford. L.

Rev. 93, 93 (1983). In one Alabama county, “the only

registration office in the county [was] closed weekends,

evenings and lunch hours.” Id. at 93–94. These

regulations ostensibly governed the time, place, and

manner of voting in a neutral way, but they

“particularly handicap[ped] minorities.” Id. at 96.

Against this backdrop, and responding to this

Court’s plurality decision in City of Mobile v. Bolden,

which had read into Section 2 a “discriminatory

purpose” element, 446 U.S. 55, 62 (1980), Congress

expressly expanded Section 2, now codified at 52

U.S.C. § 10301. As amended, Section 2 prohibits any

“voting qualification or prerequisite to voting or

standard, practice, or procedure . . . which results in a

denial or abridgement of the right of any citizen of the

United States to vote on account of race or color.”

Voting Rights Act Amendments of 1982, Pub. L. No.

97-205, 96 Stat. 131, 134 (emphasis added). Congress

further specified that, under Section 2, a voting

“standard,” “practice,” or “procedure” is invalid if it

“results” in racial minorities having “less opportunity

than other members of the electorate to participate in

the political process and to elect representatives of

their choice.” Id. By adopting this “results test,”

Congress captured the “complex and subtle” practices

which “may seem part of the everyday rough-andtumble of American politics” but are “clearly the latest

in a direct line of repeated efforts to perpetuate the

results of past voting discrimination.” S. Rep. No. 97417, at 12 (1982), reprinted in 1982 U.S.C.C.A.N. 177,

189 (“Senate Report”).

The congressional record accompanying the 1982

amendments is replete with examples of the

discriminatory practices that concerned Congress.

The House Judiciary Committee noted that counties

in Virginia and Texas had instituted “inconvenient

location[s] and hours of registration” and other

restrictive practices that acted as “continued barriers”

to racial minorities. H.R. Rep. No. 97-227, at 14, 17

(1981) (“House Report”).

The Senate Judiciary

Committee similarly identified states’ “efforts to bar

minority

participation”

through

“registration

requirements and purging of voters, changing the

location of polling places[,] and insistence on retaining

inconvenient voting and registration hours.” Senate

Report at 10 n.22. For example, a Georgia county

“adopted a policy that it would no longer approve

community groups’ requests to conduct voter

registration drives, even though only 24 percent of

black eligible voters were registered, compared to 81

percent of whites.” Id. at 11.

Although this history led to the broad statutory

language of Section 2, Petitioners insist that Section 2

must be construed narrowly (i.e., with eyes closed to

the interaction between the challenged law and

relevant circumstances on the ground) to avoid

various constitutional issues. Such manufactured

concerns, however, “cannot justify a judicially created

limitation on the coverage of the broadly worded

statute, as enacted and amended by Congress.”

Chisom, 501 U.S. at 403.

B. Section 2 Raises No “Congruence and

Proportionality” Concerns; the Rational Basis

Test Applies.

Petitioners contend that Section 2 must be

interpreted narrowly so that it would survive a

theoretical future challenge under the “congruence

and proportionality” test articulated in City of Boerne

v. Flores, 521 U.S. 507 (1997). Private Pet. Br. 39–40;

State Pet. Br. 26–27. This test, however, applies only

to legislation enacted to enforce the capacious

guarantees of the Fourteenth Amendment, not laws

implementing the more targeted guarantees of the

Fifteenth Amendment.

For over one hundred years after the Civil War,

this Court allowed Congress to use any “rational

means” to enforce the substantive guarantees of both

the Fourteenth and Fifteenth Amendments. This

deference reflected the broad language of the

Amendments’ Enforcement Clauses, which authorize

Congress to enforce the Amendments with

“appropriate” legislation. U.S. Const. Amend. XIV,

§ 5; id. XV, § 2. When examining this language for the

first time, the Court observed that “[w]hatever

legislation is appropriate, that is, adapted to carry out

the objects the amendments have in view, whatever

tends to enforce submission to the prohibitions they

contain . . . is brought within the domain of

congressional power.” Ex parte Virginia, 100 U.S. 339,

345–46 (1879).

Then, in South Carolina v.

Katzenbach, the Court applied this principle to uphold

the VRA as a legitimate exercise of Congress’s

Fifteenth Amendment enforcement power, explaining

that “Congress may use any rational means to

effectuate the constitutional prohibition of racial

discrimination in voting.” 383 U.S. at 324 (emphasis

added). Three months later, the Court applied the

same logic to the Fourteenth Amendment.

See

Katzenbach v. Morgan, 384 U.S. 641, 650–51 (1966).

The Court subsequently decided that a further

limitation was necessary to guide Congress’s

Fourteenth Amendment enforcement power because

the Fourteenth Amendment broadly guarantees the

right to “life, liberty, or property,” U.S. Const. Amend.

XIV, § 1, and unfettered discretion to enforce this

guarantee would allow Congress to “displace[] laws

and prohibit[] official actions of almost every

description and regardless of subject matter.” Boerne,

521 U.S. at 532. Accordingly, the Boerne Court

determined that Fourteenth Amendment legislation

must have a “proportionality or congruence between

the means adopted and the legitimate end to be

achieved.” Id. at 533.

By contrast, because the Fifteenth Amendment

focuses exclusively on racial discrimination in voting,

the Court has not found it necessary to impose a

similar limitation on Congress’s Fifteenth Amendment

enforcement power.

From South Carolina v.

Katzenbach forward, each of the Court’s Fifteenth

Amendment cases has used the same standard to

recognize Congress’s broad power in this realm. See,

e.g., City of Rome v. United States, 446 U.S. 156, 172,

175 (1980) (holding that “Congress’ authority under

§ 2 of the Fifteenth Amendment” is “no less broad than

its authority under the Necessary and Proper Clause”

and that “under the Fifteenth Amendment, Congress

may prohibit voting practices that have only a

discriminatory effect”); Lopez v. Monterey Cnty., 525

U.S. 266, 282–83 (1999) (holding that Congress can

enforce the Fifteenth Amendment with legislation that

“deters or remedies constitutional violations . . . even

if in the process it prohibits conduct which is not itself

unconstitutional” (quoting Boerne, 521 U.S. at 518));

Tennessee v. Lane, 541 U.S. 509, 561 (2004) (Scalia, J.,

dissenting) (noting the “expansive” construction given

the enforcement clauses with respect to measures

directed against “racial discrimination”) (emphasis in

original). Indeed, even when the Court struck down

Section 5 of the VRA, it did so because it found that

Section 5 was “irrational.” Shelby Cnty., 570 U.S. at

556.

Because any challenge to Section 2 would be

reviewed under a broad, deferential standard,

Petitioners’ purported concern for the Act’s

constitutional preservation is misplaced.

C. Section 2 Raises No Federalism Concerns.

Petitioners also contend Section 2 must be

construed narrowly to avoid interfering with states’

authority to regulate their elections.

But this

argument does not account for Congress’s power under

the Fifteenth Amendment to enact legislation

“restrictive of what the State[s] might have done

before the constitutional amendment was adopted.”

Ex parte Virginia, 100 U.S. at 346.

Petitioners rely on cases regarding the “right to

vote,” a right implied by the First and Fourteenth

Amendments. See Anderson v. Celebrezze, 460 U.S.

780, 788–89 (1983); Burdick v. Takushi, 504 U.S. 428,

433 (1992). Because plaintiffs can invoke this right to

challenge all laws that burden voting, the Court has

employed the Anderson/Burdick test, which allows

states to justify burdensome laws by showing that

such laws serve important interests. By contrast, the

Fifteenth Amendment—and by extension Section 2—

deal only with laws that burden voting in a racially

discriminatory way. As such, the range of laws that

can possibly be challenged under Section 2 is much

narrower and similar deference to states’ prerogatives

is less warranted.

And because the Fifteenth

Amendment’s express goal was to target “contrivances

by a state to thwart equality in the enjoyment of the

right to vote,” Lane v. Wilson, 307 U.S. 268, 275 (1939),

an appropriate means of enforcement is to authorize

federal courts adjudicating claims of racial

discrimination in federal elections to thoroughly

scrutinize such “contrivances,” even if they are

otherwise within the states’ authority to set the

“Times, Places and Manner” of elections under Article

1, Section 4.

Moreover, the Court has held that the

Enforcement Power allows Congress to abrogate the

powers and protections granted to states by earlierenacted Constitutional provisions.

See, e.g.,

Fitzpatrick v. Bitzer, 427 U.S. 445, 448, 454–56 (1976)

(holding that Congress may abrogate the immunity

granted by the Eleventh Amendment). Accordingly,

even if the “Times, Places and Manner” clause could

ordinarily protect racially discriminatory state

election laws from close judicial scrutiny, the Fifteenth

Amendment allows Congress to abrogate that

protection.

D. Section 2

Concerns.

Raises

Equal

Protection

Petitioners also contend a narrow interpretation

of the VRA is necessary to avoid violating the Equal

Protection Clause. Private Pet. Br. 41–42; State Pet.

Br. 26–27. But because the VRA “demands” some

consideration of race, the Court has long “assumed

that compliance with the VRA may justify the

consideration of race in a way that would not otherwise

be allowed.” Abbott v. Perez, 138 S. Ct. 2305, 2315

(2018).

Plus, legislatures can consider social and political

realities without allowing race to “predominat[e]” their

decision-making. See Bush v. Vera, 517 U.S. 952, 958

(1996) (“Strict scrutiny does not apply merely because

redistricting is performed with consciousness of

race.”). For example, if a legislature believes a voterID law is necessary to prevent voter fraud, it can both

pursue that primary goal and provide accommodations

that ease the law’s burden on minority voters. See,

e.g., Lee v. Va. State Bd. of Elections, 843 F.3d 592,

600 (4th Cir. 2016) (upholding voter-ID law that

allowed all eligible voters to obtain free IDs without

“any independent documentation”).

Voting, moreover, “is a nonmarket, nonrivalrous

good: one with no price and no limit to who may enjoy

it.” Nicholas O. Stephanopoulos, Disparate Impact,

Unified Law, 128 Yale L.J. 1566, 1571 (2019).

Accordingly, state action that uses race to invalidate

discriminatory voting burdens is not constitutionally

problematic under an equal protection theory because

it does “not visit negative consequences on any racial

group”—indeed, the “right to vote can be extended to

countless individuals without denying others access to

that right.” Janai S. Nelson, The Causal Context of

Disparate Vote Denial, 54 B.C. L. Rev. 579, 611

(2013).

II. THERE IS NO REASON TO DISTURB A VOTEDENIAL STANDARD THAT HAS BEEN

ADOPTED BY FOUR CIRCUITS, ADHERES TO

THIS COURT’S PRECEDENT, AND HAS BEEN

SMOOTHLY FUNCTIONING FOR DECADES.

Section 2(a) of the VRA prohibits any “voting

qualification or prerequisite to voting or standard,

practice, or procedure” that “results in a denial or

abridgment . . . to vote on account of race.” 52 U.S.C.

§ 10301(a) (emphasis added).

A violation is

established if, “based on the totality of [the]

circumstances,” the political processes leading to an

election are not “equally open to participation” by

minority voters so that they have less opportunity

than white voters “to participate in the political

process and to elect representatives of their choice.”

Id. § 10301(b).

Thirty-five years ago, this Court recognized that

Congress inserted the words “results in” to frame the

Section 2 inquiry. Instead of asking whether, in a

vacuum, a voting practice facially sounds as if it denies

or abridges the rights of minority voters, the question

is: in context, does the practice “interact” with preexisting social and historical conditions to result in

that burden? Gingles, 478 U.S. at 47. Answering this

question requires courts to examine the challenged

practice not as a theoretical postulate, but as a law or

regulation that interacts with real-world conditions

and must be evaluated through a fact-heavy,

“intensely local appraisal,” id. at 79 (quotation marks

omitted), that accounts for the “totality of [the]

circumstances,” 52 U.S.C. § 10301(b).

Section 2 provides relief for both vote dilution—

schemes that reduce the weight of minority votes—and

vote denial—standards, practices, or procedures that

impede minority citizens from casting votes or having

their votes counted. Vote-denial cases were the

paradigmatic, “first generation” cases brought under

Section 2. See Richard Briffault, Lani Guinier and the

Dilemmas of American Democracy, 95 Colum. L. Rev.

418, 423 (1995). Only later did the Supreme Court

“determine[] that the Act applies to ‘vote dilution’ as

well.” Id.

Since Gingles, four different Circuits addressing

vote-denial cases have used the foundation laid in

Gingles to analyze these matters. This formulation

distills Section 2 liability into a two-part test: (1) there

must be a disparate burden on the voting rights of

minority voters (“an inequality in the opportunities

enjoyed”); and (2) that burden must be caused by the

challenged voting practice (“a certain electoral law,

practice, or structure . . . cause[s] an inequality”)

because the practice “interacts with social and

historical conditions” of racial discrimination.

Gingles, 478 U.S. at 47; accord League of Women

Voters of N.C. v. North Carolina, 769 F.3d 224, 240

(4th Cir. 2014); Veasey v. Abbott, 830 F.3d 216, 244

(5th Cir. 2016) (en banc); Ohio State Conf. of NAACP

v. Husted, 768 F.3d 524, 554 (6th Cir. 2014); DNC v.

Hobbs, 948 F.3d 989, 1017 (9th Cir. 2020) (en banc);

Farrakhan v. Washington, 338 F.3d 1009, 1011–12

(9th Cir. 2003).

Throughout the years, while this test has

remained in place, this Court has not deemed it

necessary to review a single Section 2 vote-denial case.

Meanwhile, there is no evidence that courts have been

overwhelmed by vote-denial cases. And when such

cases are brought, courts have had no trouble applying

the standard to separate discriminatory voting

practices from benign election regulations. In short,

the Gingles standard is working well.

Recent events have by no means eliminated the

need for this test, which provides the quintessential

protection afforded minority voters under Section 2.

See, e.g., Shelby Cnty., 570 U.S. at 536 (“[V]oting

discrimination still exists; no one doubts that.”);

Nomination of the Hon. Amy Coney Barrett to the

Supreme Court: Hearing Before S. Comm. on the

Judiciary (Oct. 14, 2020) (“[R]acial discrimination still

exists in the United States and I think we’ve seen

evidence of that this summer.”) (statement of Amy

Coney Barrett). There is no reason for this Court to

tamper with this well-functioning framework, let

alone follow Petitioners’ radical urgings to abandon

the standard.

A. Section 2 Applies to All Vote-Denial and

Abridgement Claims, Not Just Those Going to

Voter Qualifications.

Private Petitioners insist Section 2 should be

construed as if it primarily prohibits restrictions on

voting “qualifications,” rather than “time, place, or

manner” requirements. Private Pet. Br. 22 (emphasis

omitted). They contend that the “word ‘denial’ refers

to qualifications to vote, which quite literally exclude

individuals from the franchise,” whereas “a rule

governing time, place, or manner of voting cannot be

said to ‘deny’ anyone the right to vote.” Id.

“As always, we begin with the text of the statute.”

Limtiaco v. Camacho, 549 U.S. 483, 488 (2007). The

language of the statute runs counter to Private

Petitioners’ view.

First, the statute guards against discrimination in

“voting,” so that members of the protected class have

the equal opportunity “to vote.” The VRA defines the

words “vote” and “voting” as including “all action

necessary to make a vote effective . . . including, but

not limited to, registration, listing pursuant to this

[Act], or other action required by law prerequisite to

voting, casting a ballot, and having such ballot counted

properly and included in the appropriate totals of votes

cast with respect to candidates for public or party

office and propositions for which votes are received in

an election.” 52 U.S.C. § 10310(c)(1). By definition,

“voting” and the “vote” are not limited to

qualifications.

Second, the protected “voting” acts are not limited

to “qualification[s]” or “prerequisite[s],” but include

“standard[s], practice[s] or procedure[s]. 52 U.S.C.

§ 10301(a). In Allen v. State Board of Elections, this

Court addressed this issue and found that Congress

included this language in order to give Section 2 the

broadest possible scope:

The legislative history on the whole supports

the view that Congress intended to reach any

state enactment which altered the election law

. . . in even a minor way. For example, § 2 of

the Act, as originally drafted, included a

prohibition against any “qualification or

procedure.” During the Senate hearings on the

bill, Senator Fong expressed concern that the

word “procedure” was not broad enough to

cover various practices that might effectively

be employed to deny citizens their right to

vote. In response, the Attorney General said

he had no objection to expanding the language

of the section, as the word ”procedure” “was

intended to be all-inclusive of any kind of

practice.” Indicative of an intention to give the

Act the broadest possible scope, Congress

expanded the language in the final version of

§ 2 to include any “voting qualifications or

prerequisite to voting, or standard, practice, or

procedure.”

Allen, 393 U.S. at 566–67, (quoting 42 U.S.C. § 1973)

(footnote omitted). Section 2 thus prohibits any

“procedure” that “results in a denial or abridgment,”

52 U.S.C. § 10301(a), and “procedure” includes time,

place, or manner requirements.

When Congress amended the VRA in 1982, it did

so partly in response to discriminatory time, place, and

manner restrictions. Congress cited examples of

“complex and subtle” vote denial, several of which

were time, place, or manner requirements. Senate

Report at 11 (citing Texas’s elimination of polling

places near minority neighborhoods and Georgia’s

refusal to allow community groups to conduct voter

registration drives); House Report at 14–17 (noting

that Virginia and Texas instituted inconvenient times

and places for voter registration that impeded the

voting rights of racial minorities). Exempting time,

place, or manner requirements from Section 2’s reach

would defeat the VRA’s purpose of capturing “complex

and subtle” practices that “perpetuate the results of

past voting discrimination.” Senate Report at 12.

B. Section 2 Vote-Denial Claims Are Not Limited

to Cases Where the Discriminatory Act

Affected the Election Outcome.

State Petitioners’ contention that a voting practice

violates Section 2 only if it impacts enough voters to

change an election’s outcome may be summarily

dispatched. State Pet. Br. 22.

In Chisom v. Roemer, this Court made clear that

a vote-denial plaintiff need not separately prove vote

dilution. 501 U.S. at 397. There, this Court reasoned

that an abridgement of an equal opportunity to

participate by definition is “inevitably” an impairment

of the opportunity to elect. Id. In dissent, Justice

Scalia interpreted the language of Section 2

differently, but reached the same conclusion for

purposes of this case. As Justice Scalia explained,

when a county makes it “more difficult for blacks to

opportunity ‘to participate in the political process’

than whites, and § 2 would therefore be violated—even

if the number of potential black voters was so small

that they would on no hypothesis be able to elect their

own candidate.” Chisom, 501 U.S. at 408 (Scalia, J.,

dissenting) (emphasis in original) (citation omitted).

In keeping with Section 2’s amended text and

legislative history, no court has ignored Chisom and

required a Section 2 vote-denial plaintiff to prove that

the discrimination changed the election’s outcome.

There is no reason to do so here.

C. The Senate Factors Are Applicable to Section

2 Vote-Denial Claims.

In Gingles, this Court explained the “essence of a

§ 2 claim is that a certain electoral law, practice, or

structure interacts with social and historical

conditions to cause an inequality in the [voting]

opportunities enjoyed by black and white voters.” 478

U.S. at 47.

Recognizing Section 2’s command that courts

consider the “totality of circumstances,” 52 U.S.C.

§ 10301(b), the Gingles Court looked to the Senate

Report accompanying the 1982 amendments to

compile a list of relevant “circumstances.” 478 U.S. at

36. These nine social and historical conditions—the

“Senate Factors”—include considerations such as the

history of official discrimination in the jurisdiction

(Factor One); the extent of discrimination in the

jurisdiction’s education, employment, and health

systems (Factor Five); and whether the challenged

practice has a tenuous justification (Factor Nine). Id.

at 36–37 (citing Senate Report at 28–29).

Although Gingles involved vote dilution, the

decision addressed Section 2 writ large, recognizing

that “Section 2 prohibits all forms of voting

discrimination, not just vote dilution.” 478 U.S. at 45

n.10 (emphasis added); see Senate Report at 30

(confirming that Section 2 “prohibits practices, which

. . . result in the denial of equal access to any phase of

the electoral process for minority group members”)

(emphasis added). Further, Gingles recognized the

applicability of the various Senate Factors would

naturally turn on the type of Section 2 claim at issue.

See 478 U.S. at 45. The Gingles Court’s statement

that the Senate Factors will “often be pertinent to

certain types of § 2 violations,” such as dilution, 478

U.S. at 45 (emphasis added), cannot be reconciled with

a conclusion that the Factors “only” inform one specific

type of Section 2 claim.

D. Proof of Impact in a Section 2 Vote-Denial

Case Is Not Limited to that Caused by the

Challenged Law Independent of SocioHistorical Conditions of Discrimination.

State Petitioners argue Section 2 applies only

when “disproportionate impacts on minority voters

have been caused by the state law at issue—and not

by ‘socioeconomic conditions’ or a ‘history of

discrimination.’” State Pet. Br. 28. That argument,

however, (1) ignores Section 2’s text, which demands a

consideration of the “totality of circumstances” to

determine whether a voting practice results in

unequal opportunities, 52 U.S.C. § 10301(b); (2)

disregards the congressional intent manifested in the

Senate Report that instructs consideration of the

extent to which members of a minority group “bear the

effects of discrimination,” Senate Report at 206; and

(3) flouts this Court’s precedent, which has held that

the “essence” of a Section 2 claim is that a certain

electoral law or practice “interacts with social and

historical conditions to cause an inequality,” Gingles,

478 U.S. at 47; accord Voinovich v. Quilter, 507 U.S.

146, 153 (1993).

The express statutory mandate to establish a

Section 2 violation through proof of the “totality of

circumstances” precludes Petitioners’ theory.

directing courts to consider the “totality of [the]

circumstances,” 52 U.S.C. § 10301(b), Section 2

requires an analysis that is flexible and attentive to

local conditions. See Gingles, 478 U.S. at 46 (Congress

intended a “flexible, fact-intensive test for § 2

violations”); Johnson v. De Grandy, 512 U.S. 997, 1018

(1994) (“An inflexible rule would rule counter to the

textual command of § 2 . . . .”). This Court has warned

against applying “unduly rigid” tests that would

“superimpose[] an inflexible framework onto statutory

text that is inherently flexible.” Octane Fitness, LLC

v. ICON Health & Fitness, Inc., 572 U.S. 545, 553–55

(2014).

This flexibility was no accident.

Congress

amended Section 2 to thwart more than just clumsy,

blatant forms of voter suppression. If the Act could

catch only laws that explicitly discriminated against

minority voting (e.g., “Black people cannot vote on

Tuesdays”), it would be doing essentially no work at

all. Congress, however, structured the Act so it would

not be easily outmaneuvered by states adopting subtle

forms of discrimination. See, e.g., Allen, 393 U.S. at

565 (“The Voting Rights Act was aimed at the subtle,

as well as the obvious, state regulations.”).

The need for flexibility springs directly “from the

demonstrated ingenuity of state and local

governments in hobbling minority voting power.” De

Grandy, 512 U.S. at 1018 (citations omitted). This

Court has therefore remained “chary of entertaining a

simplification” that would rob Section 2 of its essential

ability to adapt and counteract the shifting shapes of

discrimination. Id. at 1019.

Recent events have confirmed the wisdom of this

approach. See, e.g., N.C. State Conf. of NAACP v.

McCrory, 831 F.3d 204, 221 (4th Cir. 2016) (“In a vote

denial case . . . this holistic approach is particularly

important, for ‘[d]iscrimination today is more subtle

than the visible methods used in 1965.’” (quoting H.R.

Rep. No. 109-478, at 6 (2006))); Samuel Issacharoff,

Voting Rights at 50, 67 Ala. L. Rev. 387, 388 (2015)

(“[T]he ability to cast a ballot free of legal shenanigans

is more seriously under challenge than at any time

since the civil rights revolution.”).

Accordingly, federal courts have assessed votedenial claims and found violations in cases evidencing

significant impact on members of the protected class,

where the impact is a direct result of the challenged

law’s interaction with socioeconomic and historical

racial discrimination. See, e.g., Miss. State Chapter,

Operation Push, Inc. v. Mabus, 932 F.2d 400, 405 (5th

Cir. 1991) (finding dual registration system violated

Section 2 where “voter registration procedures

resulted in black citizens in Mississippi registering to

vote at a rate 25% lower than white citizens” and

jurisdiction had a “history of discriminatory voter

registration procedures”); Spirit Lake Tribe v. Benson

Cnty., No. 10-cv-095, 2010 WL 4226614, at *3 (D.N.D.

Oct. 21, 2010) (finding that closing voting places on

reservation violated Section 2 where 46% of residents

would be unable to find transportation necessary to

vote); Brown v. Dean, 555 F. Supp. 502, 504 (D.R.I.

1982) (enjoining polling location change that would “be

a substantial deterrent to voting by the members of the

plaintiff class”); Harris v. Graddick, 593 F. Supp. 128,

132–33, 137 (M.D. Ala. 1984) (Section 2 violated by

Alabama counties who appointed few or no Black

persons as poll officials where jurisdiction’s failure to

do so perpetuated voter intimidation).

Because context is integral to the Section 2

analysis, Congress outlined the Senate Factors that

help illuminate when, in context, a policy imposes a

disparate burden caused by the interaction between

the policy and race. Congress intended the Senate

Factors to be available in all Section 2 cases, not just

those involving dilution. Senate Report at 28 (“To

establish a violation, plaintiffs could show a variety of

factors, depending upon the kind of rule, practice, or

procedure called into question.

Typical factors

include: [the Senate Factors].”) (emphasis added).

Contrary to Petitioners’ argument, applying this

approach to Section 2 vote-denial cases does not leave

courts to assess the “totality of circumstances” and

Senate Factors unchecked.

By forbidding only

“denial[s] or abridgment[s]” that (1) result in minority

voters having “less opportunity,” 52 U.S.C. § 10301(b),

and (2) occur “on account of race,” id. § 10301(a),

Section 2 protects benign voting regulations that

incidentally burden the right to vote for reasons other

than race.

This is a meaningful limitation. It is not enough

for plaintiffs to identify a disparate burden. Nor is it

enough to identify a relationship between a voting

practice and that burden. Section 2 requires plaintiffs

to show that the policy “results in” that burden, 52

U.S.C. § 10301(a), because it “interacts with social and

historical conditions” of race discrimination. Gingles,

478 U.S. at 47.

Despite Petitioners’ dire prediction that the test

threatens to ‘“sweep[] away almost all registration and

voting rules’ across the nation,” Private Pet. Br. 32;

State Pet. Br. 21, application of the Gingles test has

not opened the floodgates to vote-denial cases.

Instead, courts have carefully assessed alleged

violations to reach different decisions on different

facts. See, e.g., Lee, 843 F.3d at 600 (finding Virginia

voter ID law did not violate Section 2); Veasey, 830

F.3d at 264 (finding Texas voter-ID law violated

Section 2); Ohio Democratic Party v. Husted, 834 F.3d

620, 640 (6th Cir. 2016) (finding Ohio shortening the

early-voting and registration period did not violate

Section 2); League of Women Voters, 769 F.3d at 246

(finding North Carolina law ending same-day

registration and prohibiting counting ballots cast “outof-precinct” violated Section 2). These divergent

decisions demonstrate that the test “effectively allows

examination of differing fact patterns.” Veasey, 830

F.3d at 248.

Just because a test is fact driven and multifactored does not make it dangerously limitless in

application. Private Pet. Br. 33. Courts are wellpracticed at applying such tests.

In assessing

Section 2 discriminatory intent claims, for example,

courts apply the multi-factor, totality-of-thecircumstances analysis outlined in Arlington Heights.

429 U.S. at 266–68 (listing factors for assessing

discriminatory intent and instructing judges to inquire

into any “available” “circumstantial” or “direct

evidence”); e.g., McCrory, 831 F.3d at 220 (explaining

Arlington Heights provides the framework for

analyzing a claim of intentional discrimination under

Section 2). Vote dilution claims are also governed by a

“flexible,”

“fact

intensive”

totality-of-thecircumstances test. Gingles, 478 U.S. at 46. Applying

those parameters to different circumstances, courts

have found that at-large elections cannot be used in

some jurisdictions, e.g., Goosby v. Town Board of the

Town of Hempstead, 180 F.3d 476 (2d Cir. 1999), but

are permissible elsewhere, e.g., NAACP v. City of

Niagara Falls, 65 F.3d 1002 (2d Cir. 1995). Contrary

to Petitioners’ claims, the test is not a one-way ratchet;

it is a well-established, trusted gauge of voter

discrimination.

On the other hand, adopting Petitioners’ approach

would have dire consequences. By insisting the

challenged law itself must cause the disproportionate

impact without any reference to, or interaction with,

persistent discrimination, Petitioners would insulate

even egregious voting restrictions. Such an approach

would, for example, require literacy tests to cause

underlying disparities in literacy rates—a wholesale

departure from the text and purpose of Section 2.

Under Petitioners’ approach, Justice Scalia’s

paradigmatic Section 2 violation—a rule limiting

registration to a three-hour, mid-day window that

“ma[kes] it more difficult for blacks to register”—

would instead be deemed lawful, merely because the

rule itself did not cause the Black voters’ work

schedules that could not accommodate the narrower

registration window. Chisom, 501 U.S. at 408 (Scalia,

J., dissenting). The Act was written and intended to

root out both overt and subtle discrimination. The

Court should reject Petitioners’ novel re-reading of the

statute, which would perpetuate both.

E. The Ninth Circuit’s Analysis Is Consistent

with Section 2 and this Court’s Precedent.

The techniques challenged here are akin to the

maneuvers that gave rise to the Act in the first place.

From Reconstruction through today, such tactics—

shifting polling places, sending minorities to

inconvenient precincts, and curtailing methods by

which minority groups exercise the franchise—have

denied and abridged the right to vote. In undertaking

its contextual analysis here, the Ninth Circuit adhered

to Section 2’s language and intent, and the established

standard for proving a vote-denial “results” case. It

employed the test designed to “evaluate a disparate

burden in its real-world context rather than in the

abstract.” Hobbs, 948 F.3d at 1012. To that end, the

court identified many ways in which Arizona’s policies

of disregarding “out-of-precinct” votes (the “OOP

policy”) and barring the collection of filled-out ballots

(H.B. 2023) interact with local conditions to unequally

burden minority voters. Id. at 1014–37.

The court traced Arizona’s long history—

continuing through “the present day”—of using

facially neutral policies to disenfranchise minority

voters. Id. at 1017–26. As recently as 2016, an

Arizona county “reduced the number of polling places

by 70 percent,” forcing “Hispanic and African

American voters . . . to travel greater distances to

reach polling places than white, non-Hispanic voters.”

Id. at 1025.

That same county “repeatedly

misrepresented or mistranslated key information in

Spanish-language voter materials.” Id. Under those

circumstances, Arizona’s pattern of imposing greater

travel and informational burdens on minority voters

left minority voters especially vulnerable to policies

that (a) criminalize helping voters transport their

completed ballots (H.B. 2023) and (b) place polling

centers in counter-intuitive locations and then toss

away votes cast in the wrong center.

For example, because H.B. 2023 appears facially

“neutral” and “criminaliz[es] the collection and

delivery of another person’s ballot” without

referencing the voter’s race, Petitioners would end the

analysis there. Hobbs, 948 F.3d at 998. But the

Senate Factors helped the Ninth Circuit probe the

relevant circumstances, including Factor five: the

“extent to which members of the minority group . . .

bear the effects of discrimination.” Senate Report at

29. Examining that Factor as Congress intended

demonstrated that years of discriminatory treatment

left Arizona’s minority voters with less access to secure

mail services, transportation, and jobs with flexible

work schedules that allow for taking time away to

vote. As a result of the interaction between the law

and these circumstances, minority voters bore the

disproportionate brunt of the burden at the ballot box.

Hobbs, 948 F.3d 989 at 1006–07.

As to the OOP policy, the court emphasized that

there must be a “significant disparate burden” and

that the “mere existence . . . of a disparate impact on a

racial minority . . . is not sufficient.” Hobbs, 948 F.3d

at 1012, 1032; compare State Pet. Br. 25 (mislabeling

this as an “anything-more-than-de-minimis-impactsuffices standard”). The burdens imposed here—

thousands of ballots being disregarded for a reason

that had no bearing on the vote whatsoever (i.e., an

“out of precinct” vote in a national election)—were

more severe than any “usual burdens of voting.”

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,

198 (2008) (describing “posing for a photograph” and

“gathering . . . documents” as “usual burdens” in facial

challenge to voter ID law). Arizona’s OOP policy

combined with circumstances such as “frequent

changes in polling locations,” “confusing placement of

polling locations,” and “high rates of residential

mobility” of minority voters, to leave Arizona an

“extreme outlier in rejecting OOP ballots” among other

states. Hobbs, 948 F.3d at 1000–01.

Contrary to Petitioners’ claims, the Ninth

Circuit’s test does not mandate “equal outcomes.”

State Pet. Br. 20–21; Private Pet. Br. 32. Under the

test, a disparate burden alone is “insufficient”—there

must be “a legally significant relationship” between

that burden and “social and historical conditions”

depressing minority political participation. Hobbs,

948 F.3d at 1012. Accordingly, so long as a voting

practice does not interact with underlying conditions

of racial discrimination to impose a significant burden,

the practice will pass the test, notwithstanding any

unequal outcomes. See, e.g., Smith v. Salt River

Project Agric. Improvement & Power Distrib., 109 F.3d

586, 591, 595–96 (9th Cir. 1997) (upholding district’s

land ownership voting qualification even though it led

to unequal outcomes because the “the observed

difference in rates of home ownership” was “not

substantially explained by race”).

As Salt River demonstrates, the Ninth Circuit’s

test distinguishes between laws that merely result in

unequal electoral outcomes and those that create

unequal electoral opportunities by “perpetuat[ing] the

effects of past purposeful discrimination.” Senate

Report at 40. The test’s intensely local analysis is

finely calibrated, and does not in any way “transform[]

§ 2’s equal-opportunity requirement into an equaloutcome command,” as Petitioners claim. State Pet.

Br. 20-21; Private Pet. Br. 32. Instead, it simply

fulfills the text and the purpose of the Act by

invalidating those laws that genuinely result in

discrimination at the ballot box.

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

DAMON HEWITT

JON M. GREENBAUM

EZRA D. ROSENBERG

POOJA CHAUDHURI

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1500 K Street NW

Suite 900

Washington, DC 20005

JANETTE M. LOUARD

NATIONAL ASSOCIATION

FOR THE ADVANCEMENT

OF COLORED PEOPLE

4805 Mount Hope Drive

Baltimore, MD 21215

ELIAS S. KIM

COOLEY LLP

1299 Pennsylvania Ave., NW

Washington, DC 20004

KATHLEEN R. HARTNETT

Counsel of Record

COOLEY LLP

101 California Street

San Francisco, CA 94111

(415) 693-2071

khartnett@cooley.com

ADAM S. GERSHENSON

ELIZABETH A. TRAFTON

ADAM M. KATZ

COOLEY LLP

500 Boylston Street

Boston, MA 02116

BARRETT J. ANDERSON

COOLEY LLP

4401 Eastgate Mall

San Diego, CA 92121

Counsel for Amici Curiae

January 20, 2021

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.