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

Nos. 19–1257, 19–1258

IN THE

Supreme Court of the United States

MARK BRNOVICH, ATT’Y GENERAL OF ARIZONA, ET AL.,

v.

Petitioners,

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

Respondents.

ARIZONA REPUBLICAN PARTY, ET AL.,

v.

Petitioners,

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF VOTING RIGHTS SCHOLARS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

JUSTIN LEVITT

ALLISON A. DAVIS

Counsel of Record

CHRIS SWIFT

LOYOLA LAW SCHOOL*

DAVIS WRIGHT TREMAINE LLP

919 Albany St.

505 Montgomery Street

Los Angeles, CA 90015

Suite 505

(213) 736-7417

San Francisco, CA 94111

justin.levitt@lls.edu

(415) 276-6500

* Institutional affiliation for allisondavis@dwt.com

identification purposes only

chrisswift@dwt.com

Counsel for Amici Curiae

January 20, 2021

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI ....................................... 1

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

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

I. Section 2 of the Voting Rights Act Is a

Constitutional Exercise of Congress’s Enumerated

Power ........................................................................ 6

A.

This Court Has Consistently Recognized

the Importance and Propriety of the Voting

Rights Act ............................................................. 6

B.

This Court Has Recognized that Congress

Has Substantial Authority to Exercise Its

Enumerated Powers to Address Racial

Discrimination in the Franchise .......................... 9

C.

In Section 2, Congress Sought to Deter and

Remedy Constitutional Violations by Responding

to the Lingering Impact or Present Danger Signs

of Intentional Discrimination............................. 12

II.

There Is No Reason for this Court to

Overturn Precedent, Neutering Congressional

Authority to Act Pursuant to an Enumerated

Power ...................................................................... 20

ii

III. This Case Is a Poor Vehicle to Assess the

Scope of Section 2 or the Fifteenth Amendment... 22

A.

The Primary Question with Respect to the

Ballot Collection Statute Is a Factual Matter

Limited to this Case ........................................... 23

B.

The Primary Question with Respect to

Ballots Cast in an Incorrect Precinct Is Not Only

a Factual Matter Limited to this Case, but Also

of Limited Practical Significance in Arizona

Going Forward .................................................... 26

CONCLUSION .......................................................... 29

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bartlett v. Strickland,

556 U.S. 1 (2009) .................................................. 21

Bd. of Trustees of Univ. of Ala. v.

Garrett,

531 U.S. 356 (2001) ................................................ 7

Bethune-Hill v. Va. State Bd. of

Elections,

137 S. Ct. 788 (2017) .............................................. 6

Bush v. Vera,

517 U.S. 952 (1996) ................................................ 6

Chisom v. Roemer,

501 U.S. 380 (1991) ........................................ 15, 27

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................ 8, 9, 11, 13

City of Rome v. United States,

446 U.S. 156 (1980) .................................. 10, 13, 19

City of San Francisco v. Sheehan,

135 S. Ct. 1765 (2015) ...................................... 3, 25

Cooper v. Harris,

137 S. Ct. 1455 (2017) ............................................ 6

Frank v. Walker,

768 F.3d 744 (7th Cir. 2014) ................................ 15

iv

Gonzalez v. Arizona,

677 F.3d 383 (9th Cir. 2012) ................................ 15

Greater Birmingham Ministries v. Sec’y

of State,

966 F.3d 1202 (11th Cir. 2020) ............................ 16

Hayden v. Pataki,

449 F.3d 305 (2d Cir. 2006), aff’d and

remanded sub nom. Hayden v.

Paterson, 594 F.3d 150 (2d Cir. 2010) ................. 15

Hunter v. Underwood,

471 U.S. 222 (1985) .............................................. 25

Katzenbach v. Morgan,

384 U.S. 641 (1966) .......................................... 9, 10

Kimel v. Fla. Bd. of Regents,

528 U.S. 62 (2000) ................................................ 12

League of United Latin Am. Citizens v.

Perry,

548 U.S. 399 (2006) ................................ 6, 7, 19, 26

Lee v. Va. State Bd. of Elections,

843 F.3d 592 (4th Cir. 2016) ................................ 15

Lopez v. Monterey Cty.,

525 U.S. 266 (1999) .............................................. 13

Mt. Healthy City Sch. Dist. Bd. of Educ.

v. Doyle,

429 U.S. 274 (1977) .............................................. 25

McCulloch v. Maryland, 17 U.S. 316

(1819) ................................................................... 20

v

Nev. Dep’t of Human Res. v. Hibbs,

538 U.S. 721 (2003) .................................... 7, 13, 14

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

Holder,

557 U.S. 193 (2009) .............................................. 11

Ohio Democratic Party v. Husted,

834 F.3d 620 (6th Cir. 2016) ................................ 15

Oregon v. Mitchell,

400 U.S. 112 (1970) ............................................ 8, 9

Ortiz v. City of Phila. Office of City

Comm’rs Voter Registration Div.,

28 F.3d 306 (3d Cir. 1994) .................................... 15

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) .............................................. 22

S. Carolina v. Katzenbach,

383 U.S. 301 (1966) ........................................ 10, 13

Shelby Cty. v. Holder,

570 U.S. 529 (2013) .............................. 6, 10, 21, 24

Simmons v. Galvin,

575 F.3d 24 (1st Cir. 2009) ................................... 15

Smith v. Salt River Project Agr. Imp. &

Power Dist.,

109 F.3d 586 (9th Cir. 1997) ................................ 16

Tennessee v. Lane,

541 U.S. 509 (2004) .............................. 7, 10, 12, 22

vi

Thornburg v. Gingles,

478 U.S. 30 (1986) .............................. 14, 18, 19, 20

United States v. Blaine Cty.,

363 F.3d 897 (9th Cir. 2004) ................................ 17

Veasey v. Abbott,

830 F.3d 216 (5th Cir. 2016) ................................ 15

Village of Arlington Heights v. Metro.

Hous. Dev. Corp.,

429 U.S. 252 (1977) .............................................. 24

Whitfield v. Democratic Party of State of

Ark.,

890 F.2d 1423 (8th Cir. 1989) .............................. 15

Yick Wo v. Hopkins,

118 U.S. 356 (1886) ................................................ 9

Statutes

Voting Rights Act, 42 U.S.C. § 1973 et

seq. and 52 U.S.C. § 10301 (Section 2) .........passim

U.S. Constitution

Eleventh Amendment .................................................. 7

Fourteenth Amendment .....................................passim

Fifteenth Amendment ........................................passim

vii

Rules

Supreme Court Rule 10 ............................................... 3

Supreme Court Rule 37.3 ............................................ 1

Supreme Court Rule 37.6 ............................................ 1

Other Authorities

Christopher S. Elmendorf & Douglas M.

Spencer, Administering Section 2 of

the Voting Rights Act After Shelby

County, 115 Colum. L. Rev. 2143

(2015) .................................................................... 18

William N. Eskridge, Jr. & John

Ferejohn, A Republic of Statutes 1–

24 (2010) ................................................................. 6

Sam Kmack, State, County Policies

Impact Rejected Ballot Rates in

November Election, Ariz. Ctr. for

Investigative Reporting, Dec. 21,

2020 ....................................................................... 29

Justin Levitt, Quick and Dirty: The New

Misreading of the Voting Rights Act,

43 Fla. St. U. L. Rev. 573 (2017) .......................... 18

Michael W. McConnell, Institutions and

Interpretation: A Critique of City of

Boerne v. Flores, 111 Harv. L. Rev.

153 (1997) ............................................................. 11

S. Rep. No. 97–417 (1982), reprinted in

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

viii

U.S. Census Bureau, Explore Census

Data, American Community Survey:

Total Population, 2019 ACS 5-Year

Estimates tbl. B01003 .......................................... 29

U.S. Election Assistance Comm’n, 2016

Election Administration and Voting

Survey, https://

www.eac.gov/research-anddata/datasets-codebooks-and-surveys; ................ 28

U.S. Election Assistance Comm’n, 2018

Election Administration and Voting

Survey ................................................................... 28

1

INTEREST OF THE AMICI 1

Amici curiae are recognized scholars in the

constitutional regulation of the franchise.

Amicus curiae Joseph Fishkin, is the Marrs

McLean Professor in Law at the University of Texas.

He teaches and writes about constitutional law and

the law of democracy, including questions of

discrimination, equality, and the Voting Rights Act

(“VRA”). Before he began his work as a law professor,

he worked briefly at the NAACP Legal Defense and

Educational Fund, where he assisted with the effort to

reauthorize the VRA in 2006.

Amicus curiae Rebecca Green is Professor of the

Practice of Law and the Kelly Professor for Excellence

in Teaching at William and Mary Law School. She is

the Co-Director of the Election Law Program, a joint

project of the William and Mary Law School and the

National Center for State Courts.

Amicus curiae Justin Levitt is Professor of Law

at Loyola Law School, Los Angeles. His teaching and

scholarship focus on constitutional law and the law of

democracy, including the interpretation and

application of the VRA. He served as Deputy Assistant

Attorney General for the Civil Rights Division of the

Department of Justice, where (among other things) he

Pursuant to Supreme Court Rule 37.3, amici curiae

certify that all parties have consented to the filing of this brief

through letters from the parties on file with the Court. Pursuant

to Supreme Court Rule 37.6, amici curiae certify that no counsel

for a party authored this brief, in whole or in part, and that no

person or entity, other than amici curiae and their counsel, made

a monetary contribution to its preparation or submission.

1

2

supported and supervised the Department’s work on

voting rights. He has been invited to testify on the

enforcement of and constitutional authority for the

Voting Rights Act by committees of the United States

Senate and House of Representatives, the United

States Civil Rights Commission, and State legislative

bodies, and has served as an expert witness in both

state and federal courts.

Amicus curiae Douglas Spencer is Professor of

Law and Public Policy at the University of Connecticut

and Distinguished Faculty Fellow at the Byron R.

White Center for the Study of American Constitutional

Law at the University of Colorado. His scholarship

centers on issues of constitutional law and voting

rights, including Section 2 of the VRA. Spencer has

also served as an expert witness in cases brought

under Section 2 of the VRA.

SUMMARY OF THE ARGUMENT

The Voting Rights Act is one of the country’s

most successful civil rights laws, and Section 2 is now

its most essential provision. Congress properly

enacted, and then amended, Section 2 pursuant to its

enforcement authority under the Fourteenth and

Fifteenth Amendments to the United States

Constitution, and this case is a poor vehicle to map the

precise boundaries of that enforcement authority.

Claims that Section 2 would overshoot constitutional

borders if used to prohibit mere disparate impacts are

misplaced here; this case does not turn on whether

evidence of disparate racial impacts alone could

establish a violation of Section 2, given that no court

below so held. Rather, each of those courts applied the

statute with an eye to preventing or remedying

3

constitutional violations, in a manner well within the

bounds of congressional power. Resolving this case on

the merits would require the Court to weigh the

evidence and decide whether the lower courts made

“erroneous factual findings” or misapplied wellestablished “rule[s] of law” — all in service of

determining the permissibility of specific election laws

with limited continuing relevance even in Arizona,

much less in other jurisdictions. S. Ct. R. 10. In short,

this case provides neither a reason to doubt the

constitutionality of Section 2 or its application by the

Ninth Circuit, nor an effective channel to examine

those issues. The Court should therefore dismiss the

petition for certiorari as improvidently granted. See,

e.g., City of San Francisco v. Sheehan, 135 S. Ct. 1765,

1780 (2015) (Scalia, J., concurring in part and

dissenting in part) (noting that “we are not, and for

well over a century have not been, a court of error

correction,” and maintaining that the proper course

was to dismiss the questions presented as

improvidently granted because “certiorari jurisdiction

exists to clarify the law”).

First, this case presents no real dispute

regarding Section 2’s object or constitutional

imprimatur. In 1982, Congress recognized that a

statute designed to enforce constitutional protections

against intentional discrimination in the franchise

could effectively accomplish that goal only if it

proscribed behavior lying slightly beyond the express

constitutional prohibition itself. That is, in the arena

of voting rights, Congress recognized that a statute

requiring direct present proof of intentional

discrimination was inadequate in order to deter and

remedy discrimination. And so the 1982 amendments

4

to the Voting Rights Act created a bit of prophylaxis.

Congress chose to deter present intentional

discrimination in the franchise by addressing present

danger signs of discrimination; Congress chose to

remedy past intentional discrimination by addressing

lingering present electoral consequences of that

discrimination.

This choice was well within the congressional

authority expressly conveyed by the Fourteenth and

Fifteenth Amendments. Under either the standard of

review the Court applies to enforcement of the

Fifteenth Amendment — with its narrow focus on the

confluence of racial discrimination and the franchise

— or the more restrictive standard the Court applies

to enforcement of the broader Fourteenth Amendment

guarantees, the means by which Congress chose to

deter or remedy constitutional violations via Section 2

passes constitutional muster.

Second, no court in this case applied a legal

standard crossing statutory or constitutional bounds.

Section 2’s twin goals of deterring and remedying

intentional discrimination find expression in the

command to examine the “totality of circumstances,”

with guidance from factors identified by the U.S.

Senate as indicative of present discriminatory risk or

past discriminatory conduct in need of present

electoral remedy. Every appellate circuit — and each

of the courts below — has recognized that the

statutory text requires more than disparate impact

alone to establish Section 2 liability.

Thus, the primary disputes among the courts

below were factual disputes that do not implicate any

concern regarding congressional power. Because those

5

primary disputes are fact-bound and steeped in local

context, they are unlikely to substantially affect the

resolution of future cases; moreover, one of the Arizona

provisions at issue in this case has become

significantly less meaningful even in Arizona as modes

of voting there have changed. This Court should

therefore dismiss the petition for certiorari as

improvidently granted.

ARGUMENT

Petitioners and several amici suggest that the

Ninth Circuit’s interpretation of Section 2 of the

Voting Rights Act is premised solely on the disparate

impact of the Arizona provisions challenged in this

case, and assert that such an application exceeds

Congress’s constitutional authority. Brief for State

Petitioners 25–26; Brief for Private Petitioners 41;

Brief of Amici Curiae States of Ohio et al. 30; Brief

Amicus Curiae of American Constitutional Rights

Union 5–6; Brief of Sen. Ted Cruz et al. as Amici

Curiae 14, 28–29; Brief of Amicus Curiae Gov. Kristi

Noem 13. This is not an accurate description of the

Ninth Circuit’s opinion, but a strawman. The Ninth

Circuit — like all other circuits — does not allow for

Section 2 violations premised solely on disparate

impact, but instead applies Section 2 in a manner

consistent with precedent and well within the

permissible scope of Congress’s authority under its

enumerated powers to enforce the Fourteenth and

Fifteenth Amendments.

6

Section 2 of the Voting Rights Act Is a

Constitutional Exercise of Congress’s

Enumerated Power

A.

This Court Has Consistently Recognized

the Importance and Propriety of the

Voting Rights Act

The Voting Rights Act is often cited as the

country’s most successful civil rights law. See William

N. Eskridge, Jr. & John Ferejohn, A Republic of

Statutes 1–24, 117–18 (2010) (underscoring the

essential role of the Act). The most powerful remaining

provision of the statute is the nationwide protection

against discriminatory laws contained in Section 2. In

its opinion striking down the 2006 coverage formula of

Section 4 as insufficiently attuned to present

conditions, this Court took pains to note that the

“decision in no way affects the permanent, nationwide

ban on racial discrimination in voting found in § 2.”

Shelby Cty. v. Holder, 570 U.S. 529, 557 (2013). And as

a governmental interest, Section 2 of the Act is

sufficiently vital that the Court has long assumed —

and individual Justices have clearly stated — that

compliance with Section 2 is sufficient to satisfy the

constitutional strict scrutiny that is required where

electoral regulations are predominantly motivated by

racial considerations. Cooper v. Harris, 137 S. Ct.

1455, 1464, 1469 (2017); League of United Latin Am.

Citizens (LULAC) v. Perry, 548 U.S. 399, 475 (2006)

(Stevens, J., concurring in part and dissenting in part);

Bush v. Vera, 517 U.S. 952, 990 (1996) (O’Connor, J.,

concurring). Cf. Cooper, supra, at 1464, 1469 (noting

the same for Section 5); Bethune-Hill v. Va. State Bd.

of Elections, 137 S. Ct. 788, 801–02 (2017) (Section 5);

7

LULAC, supra, at 475 n. 12 (Stevens, J., concurring in

part and dissenting in part, and noting the agreement

of Justice Breyer on this point) (Section 5); id. at 518

(Scalia, J., concurring in the judgment in part and

dissenting in part) (Section 5).

This Court has recognized the VRA’s legitimacy

as well as its importance. Indeed, several Justices

have pointed to the Voting Rights Act as a model of

enforcement authority under the Reconstruction

Amendments: the VRA has been deployed as the

exemplar of proper congressional action, offered up in

contrast to the inadequacies of other federal statutes.

It is unsurprising, perhaps, that the most thorough

approbation arrives in citation of the original 1965

enactment and its preclearance regime. For example,

in an opinion questioning congressional authority

under the Fourteenth Amendment to abrogate States’

Eleventh Amendment immunity in Title II of the

Americans with Disabilities Act of 1990, Chief Justice

Rehnquist contrasted what he described as a meager

evidentiary record of relevant state violations

concerning access to the courts for persons with

disabilities with the far more “extensive” record

supporting the remedial action of the Voting Rights

Act. See Tennessee v. Lane, 541 U.S. 509, 547–48

(2004) (Rehnquist, C.J., dissenting). And in an opinion

similarly questioning congressional authority to

abrogate sovereign immunity in the Family and

Medical Leave Act of 1993, Justices Kennedy, Scalia,

and Thomas similarly cited the contrasting authority

of the Voting Rights Act “as a proper exercise of

Congress’s remedial power.” Nev. Dep’t of Human Res.

v. Hibbs, 538 U.S. 721, 756–57 (2003) (Kennedy, J.,

dissenting); see also Bd. of Trustees of Univ. of Ala. v.

8

Garrett, 531 U.S. 356, 373 (2001) (finding insufficient

Fourteenth Amendment foundation for Title I of the

ADA, in marked contrast to the Voting Rights Act’s

“detailed but limited remedial scheme designed to

guarantee meaningful enforcement of the Fifteenth

Amendment”).

But it is not merely the VRA’s preclearance

regime that has earned the Court’s stamp of approval.

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

Court held that the Religious Freedom Restoration Act

of 1993 was not a proper use of the enforcement power

of the Fourteenth Amendment, sufficient to apply

against the States. Id. at 536. In doing so, the Court

repeatedly juxtaposed the improper thrust of that

statute with Congress’s appropriate use of enumerated

power in passing the Voting Rights Act. Id. at 518. And

the Court in Boerne emphasized the propriety of not

merely the preclearance provisions of the original

VRA, but also nationwide provisions aimed at

remedying or deterring constitutional violations,

without proof of localized discriminatory intent. For

example, the Court noted the Act’s ban on literacy

tests as a proper prophylactic use of congressional

authority even as applied to States without a record of

intentional racial discrimination in the franchise. Id.

at 518, 526-27, 533; see also Oregon v. Mitchell, 400

U.S. 112, 118 (1970) (Black, J.) (describing unanimity

on the Court regarding the propriety of the ban on

literacy tests); id. at 216 (Harlan, J., concurring in part

and dissenting in part) (finding the ban justified by the

risk of discrimination); id. at 234–36 (Brennan, J.,

dissenting in part and concurring in the judgment in

part) (finding the ban justified by the lingering

electoral effects of prior educational discrimination);

9

id. at 283–84 (Stewart, J., concurring in part and

dissenting in part) (focusing on the nationwide scope).

And the Court noted the Act’s national ban on Englishonly franchise restrictions for voters educated in

American schools in languages other than English as

a similarly a proper prophylactic use of congressional

authority even as applied to States without a record of

intentional racial discrimination in the franchise. City

of Boerne, supra, at 528, 533; see also Katzenbach v.

Morgan, 384 U.S. 641, 648–49, 652–54 (1966).

B.

This Court Has Recognized that

Congress Has Substantial Authority to

Exercise Its Enumerated Powers to

Address Racial Discrimination in the

Franchise

The Court’s repeated invocations of the

constitutional legitimacy of the core protections of the

Voting Rights Act are rooted in the VRA’s power to

address the convergence of racial discrimination and

the right to vote—the lingering cancer that is the

country’s most troubling social cleavage, and the

critical point of access to the political process that is

“preservative of all [other] rights.” Yick Wo v. Hopkins,

118 U.S. 356, 370 (1886). Without robust protections

against racial discrimination in the franchise, there

can be no hope for the public’s confidence in

government of the people by the people.

The Fifteenth Amendment is devoted

exclusively to rooting out this evil of racial

discrimination in the franchise, and expressly

authorizes Congress to enforce its command by

appropriate legislation. U.S. Const. amend. XV.

Unlike the Fourteenth Amendment, which protects a

10

broad expanse of constitutional rights and authorizes

a broad expanse of congressional action, Tennessee,

541 U.S. at 518, the Fifteenth Amendment concerns

only a single subject embracing the confluence of two

constitutionally protected arenas, and, it follows, must

be deep in impact. See id. at 555 (Scalia, J., dissenting)

(“But the Fourteenth Amendment, unlike the

Fifteenth, is not limited to denial of the franchise and

not limited to the denial of other rights on the basis of

race.”); id. at 561–63 (discussing the reasons to give

“more expansive scope” to congressional legislation

directed against racial discrimination by the States,

including provisions of the Voting Rights Act).

This Court has, accordingly, recognized the

wisdom of deferring to congressional execution of its

enumerated power to enforce the Fifteenth

Amendment. On the rare occasions when Congress has

exercised its constitutional prerogative under this

Amendment, the Court has asked only if the

congressional action constitutes “any rational means

to effectuate the constitutional prohibition of racial

discrimination in voting.” S. Carolina v. Katzenbach,

383 U.S. 301, 324, 330 (1966); id. at 326 (emphasizing

the “full remedial powers” of Congress in this arena);

Katzenbach, supra, at 651; City of Rome v. United

States, 446 U.S. 156, 175–77 (1980); Shelby Cty., 570

U.S. at 550, 556 (holding that it would have been

“irrational” for Congress to enact a coverage formula

in 2006 based on 40-year-old data); id. at 569

(Ginsburg, J., dissenting) (noting that the Court “does

not purport to alter settled precedent establishing that

the dispositive question is whether Congress has

employed ‘rational means’”); cf. Tennessee, supra, at

564 (Scalia, J., dissenting) (“Thus, principally for

11

reasons of stare decisis, I shall henceforth apply the

permissive McCulloch standard to congressional

measures designed to remedy racial discrimination by

the States.”); see also Michael W. McConnell,

Institutions and Interpretation: A Critique of City of

Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997)

(quoting Republican Senator Oliver Morton, a Framer

of the Reconstruction Amendments, as explaining that

“the remedy for the violation of the fourteenth and

fifteenth amendments was expressly not left to the

courts. The remedy was legislative[.]”).

Perhaps because the substantive scope of the

Fourteenth Amendment is much more expansive than

the Fifteenth Amendment, and because the

enumerated power to enforce the Fourteenth

Amendment thus conveys far more substantive power

on Congress than the similar enumerated power to

enforce the Fifteenth Amendment, this Court has

articulated a somewhat more intensive “congruence

and proportionality” standard of review for Fourteenth

Amendment legislation. City of Boerne, 521 U.S. at

520. But whether Section 2 of the Voting Rights Act is

evaluated under the standard articulated in Boerne

relating to the Fourteenth Amendment, or the

rationality standard consistently deployed to evaluate

legislation to enforce the Fifteenth Amendment, cf.

Nw. Austin Mun. Util. Dist. No. One v. Holder, 557

U.S. 193, 204 (2009) (noting the distinction), Section 2

— as applied in each and every circuit, including the

Ninth Circuit — is legislation well within the power

conferred on Congress by the Constitution.

12

C.

In Section 2, Congress Sought to Deter

and Remedy Constitutional Violations by

Responding to the Lingering Impact or

Present Danger Signs of Intentional

Discrimination

Under either standard of review, Section 2 of

the Voting Rights Act is within Congress’s

enforcement power under the Fourteenth and

Fifteenth Amendments because it effectuates their

substantive provisions, and does not seek to alter the

constitutional standard.

The

Fourteenth

Amendment

prohibits

intentional discrimination on the basis of race; the

Fifteenth

Amendment

prohibits

intentional

discrimination on the basis of race specifically in the

electoral context. The Voting Rights Act clearly

prohibits intentional discrimination. But in 1982,

Congress just as clearly recognized that prohibiting

intentional discrimination was insufficient in practice

to enforce the constitutional command. S. Rep. No. 97–

417, at 16, 26–27, 36–38 (1982), reprinted in 1982

U.S.C.C.A.N. 177, 193, 204, 214–17. Therefore, as

amended, Section 2 also seeks “to remedy and to deter

violations of rights guaranteed [by the Reconstruction

Amendments] by prohibiting a somewhat broader

swath of conduct, including that which is not itself

forbidden by the Amendment[s’] text.” Tennessee, 541

U.S. at 518–19 (quoting Kimel v. Fla. Bd. of Regents,

528 U.S. 62, 81 (2000)). That is, Congress did not

purport to alter that which is constitutionally

proscribed, but instead chose to establish an

additional narrow zone of prophylaxis to protect the

constitutional core by remedying and deterring

13

discrimination with an impact on the franchise. See,

e.g., S. Rep. No. 97–417, at 16–17, 1982 U.S.C.C.A.N.

at 194 (“The proposed amendment to Section 2 is well

within Congress’s constitutional authority. It is not an

effort to overrule a Supreme Court interpretation of

the Constitution, rather it provides a statutory

prohibition which the Congress finds is necessary to

enforce the substantive provisions of the 14th and 15th

Amendments.”); see also id. at 41, 1982 U.S.C.C.A.N.

at 219.

This Court has repeatedly held that provisions

aimed at remedy and deterrence of constitutional

violations are within the scope of Congress’s

enumerated enforcement powers, as congruent and

proportional efforts to protect the constitutional

mandates. See, e.g., id.; Nev. Dep’t of Human Res., 538

U.S. at 737–38 (specifically citing the prophylactic

provisions of the VRA as an example of appropriate

authority); City of Boerne, supra, at 520 (same).

Because such legislation meets the “congruent and

proportional” Boerne test of congressional legislation,

it a fortiori satisfies rational basis review under the

Fifteenth Amendment. City of Rome, 446 U.S. at 173–

75 (noting that “even if § 1 of the Amendment prohibits

only purposeful discrimination, the prior decisions of

this Court foreclose any argument that Congress may

not, pursuant to § 2, outlaw voting practices that are

discriminatory in effect.”); Lopez v. Monterey Cty., 525

U.S. 266, 283 (1999); S. Carolina, 383 U.S. at 327.

The nature of the tailored prophylaxis deployed

by the Voting Rights Act varies by provision. In

different portions of the Act, Congress “confronted a

difficult and intractable problem, where previous

14

legislative attempts had failed.” Nev. Dep’t of Human

Res., supra, at 737 (citation, internal quotation marks,

and alteration omitted). In 1965, Section 5 of the

Voting Rights Act sought to combat systematic

intentional discrimination that evaded individual

reactive enforcement efforts. S. Rep. No. 97–417, at 5–

6, 1982 U.S.C.C.A.N. at 182–83.

In 1982, the amendments to Section 2 of the Act

confronted a different remedial failure: requiring proof

of present discriminatory intent in the allocation of the

franchise left constitutional violations insufficiently

remedied and insufficiently deterred. S. Rep. No. 97–

417, at 16, 26–27, 36–38, 1982 U.S.C.C.A.N. at 193,

204, 214–17. In some instances, enforcement against

intentional discrimination in the terms of political

participation or electoral opportunity faltered on an

extreme standard of proof, or on courts’ reluctance to

brand sovereign jurisdictions or pivotal legislators

with the scarlet letter of intentional misconduct. Id. at

36–37, 1982 U.S.C.C.A.N. at 214–15. Congress

therefore reinforced Section 2 by imposing

prophylactic liability around danger signs of present

discrimination. In other instances, discrimination in

non-electoral arenas had lingering electoral

consequences — such as, paradigmatically, minority

voters’ ability to pass a literacy test to vote after

extensive discrimination in the education system.

Congress thus provided in Section 2 a remedy for the

lingering impact that manifested in the electoral

realm. See, e.g., Thornburg v. Gingles, 478 U.S. 30, 69

(1986) (plurality opinion) (“Congress intended that the

Voting Rights Act eradicate inequalities in political

opportunities that exist due to the vestigial effects of

past purposeful discrimination.”). While these uses

15

reach beyond the substantive prohibitions of the

Reconstruction Amendments themselves, as Congress

stated, they remain necessary to deter or remedy the

constitutional violations at their core. S. Rep. No. 97417, at 40, 1982 U.S.C.C.A.N. at 218.

And so this Court has recognized that, after the

1982 Amendments to Section 2, “proof of intent is no

longer required to prove a § 2 violation.” Chisom v.

Roemer, 501 U.S. 380, 394 (1991) (emphasis added).

But Congress also recognized that liability under the

statute would not turn on disparate impact alone. S.

Rep. No. 97–417, at 34, 1982 U.S.C.C.A.N. at 212. And

contrary to the claims of amici, no circuit court today

holds that a regulation yielding a simple racial

disparity, standing alone, suffices to establish a

violation of the statute. See, e.g., Simmons v. Galvin,

575 F.3d 24, 41 (1st Cir. 2009) (noting that Section 2

provides no liability for claims of disproportionate

impact alone); Hayden v. Pataki, 449 F.3d 305, 332–33

(2d Cir. 2006) (en banc) (Walker, C.J., concurring),

aff’d and remanded sub nom. Hayden v. Paterson, 594

F.3d 150 (2d Cir. 2010); Ortiz v. City of Phila. Office of

City Comm’rs Voter Registration Div., 28 F.3d 306, 314

(3d Cir. 1994); Lee v. Va. State Bd. of Elections, 843

F.3d 592, 601 (4th Cir. 2016); Veasey v. Abbott, 830

F.3d 216, 244–45 (5th Cir. 2016) (en banc); Ohio

Democratic Party v. Husted, 834 F.3d 620, 637–38 (6th

Cir. 2016); Frank v. Walker, 768 F.3d 744, 753 (7th Cir.

2014); Whitfield v. Democratic Party of State of Ark.,

890 F.2d 1423, 1430–32 (8th Cir. 1989); Gonzalez v.

Arizona, 677 F.3d 383, 405 (9th Cir. 2012) (en banc);

16

Greater Birmingham Ministries v. Sec’y of State, 966

F.3d 1202, 1232-34 (11th Cir. 2020). 2

Nor was disparate impact, standing alone, the

basis for any ruling in the instant case. The trial court

here did not hold that simple statistical disparity

would suffice to establish a Section 2 violation. JA

317–18. The initial appellate panel here, adhering to

Ninth Circuit precedent, did not hold that simple

statistical disparity would suffice. JA 401 (quoting

Smith v. Salt River Project Agr. Imp. & Power Dist.,

109 F.3d 586, 595 (9th Cir. 1997) (“[A] bare statistical

showing of disproportionate impact on a racial

minority does not satisfy the § 2 ‘results’ inquiry.

Rather, [Section 2] plaintiffs must show a causal

connection between the challenged voting practice and

[a] prohibited discriminatory result.”)). And the en

banc court, adhering to the same Circuit precedent,

did not hold that simple statistical disparity would

suffice. JA 613 (also citing the same portion of Salt

River); cf. Brief for the United States as Amicus Curiae

in Support of Petitioners at 15–16 (“Section 2 does not

reflexively invalidate any voting practice with a

racially disparate impact on minority voting; instead,

the statute prohibits only the sorts of discriminatory

results that are properly reached by prophylactic

enforcement legislation under the Fifteenth

Amendment.”).

Though Section 2 is often mentioned in casual

shorthand as an “effects” or “results” test, that

2 It appears that the U.S. Courts of Appeals for the Tenth and

D.C. Circuits have not resolved a Section 2 case on the merits

beyond the redistricting context since the 1982 amendments to

the VRA.

17

unfortunate shorthand, in truth, merely distinguishes

the post-1982 amended version of the statute from the

prior requirement to prove intentional discrimination.

As the Ninth Circuit has noted, “calling [S]ection 2’s

test a ‘results test’ is somewhat of a misnomer because

the test does not look for mere disproportionality in

electoral results.” United States v. Blaine Cty., 363

F.3d 897, 909 (9th Cir. 2004). The notion that simple

claims of disparate impact alone will suffice to show

liability under Section 2 is a strawman.

Instead, while a claim under the portion of

Section 2 amended in 1982 may begin with the

establishment of a disparate impact, that is never the

end of the analysis. A post-1982 “results” claim under

Section 2 is always connected to unconstitutional

intentional discrimination — in some cases, the

lingering present electoral effects of past intentional

discrimination in need of remedy; in others, danger

signs warning of present intentional electoral

discrimination in need of deterrence. Such a claim is

tied to intentional discrimination through the textual

requirement to examine the “totality of circumstances”

before determining that a disparate impact denies or

abridges the right to vote, or affords some voters less

electoral opportunity than others, on account of race or

ethnicity. 52 U.S.C. § 10301.

Examining the totality of circumstances behind

a particular VRA claim requires an intensely local

examination of context: “The essence of a § 2 claim,”

this Court has explained, “is that a certain electoral

law, practice, or structure interacts with social and

historical conditions” to cause an inequality of

electoral opportunity rooted in past discrimination or

18

yielding concern about discrimination in the present.

Thornburg, 478 U.S. at 47; see also Justin Levitt,

Quick and Dirty: The New Misreading of the Voting

Rights Act, 43 Fla. St. U. L. Rev. 573, 587 (2017);

Christopher S. Elmendorf & Douglas M. Spencer,

Administering Section 2 of the Voting Rights Act After

Shelby County, 115 Colum. L. Rev. 2143, 2163–68

(2015) (reviewing courts’ varying interpretations of the

“totality of circumstances” and concluding that though

courts may differ in the particulars, all seem to require

a tie to intentional discrimination).

This Court has recognized that Congress

intended to make the totality of circumstances inquiry

administrable through the lens of the “Senate factors”:

a non-exhaustive set of factors that are potential

indicators of liability, listed in the Senate Judiciary

report accompanying the 1982 amendment of Section

2. S. Rep. No. 97–417, at 28–29, 1982 U.S.C.C.A.N. at

205–06; accord Thornburg, supra, at 44–45. Some of

these factors point to public or private danger signs of

present discrimination by the jurisdiction, or

discrimination that is furthered by a jurisdiction’s

practices: for example, the jurisdiction’s history of

voting discrimination, raising the risk of a pattern, see

id. at 36–37 (factor 1); extensive racial polarization

creating robust political reward for incumbents to

discriminate, see id. at 37 (factor 2); discrimination by

candidates likely to translate to discrimination in a

governing body, see id. (factors 4 and 6, and the

absence of official responsiveness); voting practices or

procedures

enhancing

the

opportunity

for

discrimination or incentives for campaigns to cater to

racial prejudice in the electorate, see id. (factors 3, 4,

and 6); or a state interest sufficiently tenuous to signal

19

pretext, see id. (noted but unnumbered in the Senate

report). Other factors point to the lingering electoral

impact of past local discrimination in other arenas.

See, e.g., id. at 36–37 (factors 1 and 5); LULAC, 548

U.S. at 440 (noting that for some communities in some

locations, the “political, social, and economic legacy of

past discrimination . . . may well hinder their ability

to participate effectively in the political process”

(quoting Thornburg, 478 U.S. at 45 (internal quotation

marks omitted)). In some jurisdictions, for example, a

literacy test for voting — even if not itself the product

of intentional discrimination — may “‘freeze the effect’

of past discrimination” in education, City of Rome, 446

U.S. at 175–76, or the placement of polling places may

import into the electoral arena the lingering present

damage of past intentional racial discrimination in

housing, transportation, or employment. In other

jurisdictions, where a different totality of

circumstances is present, even similar laws with

similarly disparate impacts will not yield the

connection sufficient to demonstrate a violation of the

VRA.

It is the application of the “Senate factors” to

any disparate impact that, in the Ninth Circuit and

elsewhere, keeps enforcement of Section 2 well within

the constitutionally authorized zone of congressional

power no matter the appropriate standard of review.

They are factors, not formulas, to be assessed in local

context after a “searching practical evaluation of the

‘past and present reality’” of the electoral system’s

operation, Thornburg, 478 U.S. at 45 (1986) (quoting

S. Rep. No. 97–417, at 30, 1982 U.S.C.C.A.N. at 208,

because the precise nature of a connection to a

constitutional violation may vary by circumstance and

20

locality. In many circumstances and localities, a

disparate impact will have no such connection and

incur no statutory liability. In every case, the “Senate

factors” are designed to reveal or refute a present need

responsive to current conditions and related to

constitutional harm. The “Senate factors” thus help

courts distinguish disparate impacts that are merely

happenstance from those indicating a need to remedy

or deter a constitutional violation.

There Is No Reason for this Court to

Overturn Precedent, Neutering

Congressional Authority to Act

Pursuant to an Enumerated Power

As noted above, this Court has repeatedly

recognized that Congress’s enumerated powers to

enforce the Reconstruction Amendments include the

power to prohibit a broader swath of conduct than that

prohibited by the substantive provisions of the

Amendments themselves. This latitude is particularly

appropriate when Congress acts to remedy

discrimination on the basis of race: the very injustice

that spawned the Reconstruction Amendments. And

the latitude is more appropriate still when Congress

acts to remedy racial discrimination in the franchise,

the lone subject to which the Fifteenth Amendment is

dedicated, and the right protecting all others in our

republican system.

An alternative view of congressional power

would amount to a seismic jurisprudential shift with

substantial adverse practical consequences. With

respect to every other enumerated power, either the

enumerated power itself or the Necessary and Proper

Clause provides Congress discretion to employ means

21

related to, but somewhat beyond, the precise text of

the enumerated grant; there is no reason to singularly

neuter the enumerated powers of the Reconstruction

Amendments. McCulloch v. Maryland, 17 U.S. 316,

324–25 (1819) (“Congress is authorized to pass all laws

‘necessary and proper’ to carry into execution the

powers conferred on it.”). And if the enforcement

clauses of the Reconstruction Amendments provide

Congress no ability to ensure that past constitutional

violations do not continue to affect the franchise, and

no prophylactic capacity to deter the constitutional

violations of the present, then constitutional violations

will continue to erupt and fester, with lingering impact

resistant to judicial remedy. This Court has

acknowledged that “racial discrimination and racially

polarized voting are not ancient history. Much remains

to be done to ensure that citizens of all races have

equal opportunity to share and participate in our

democratic processes and traditions; and § 2 must be

interpreted to ensure that continued progress.”

Bartlett v. Strickland, 556 U.S. 1, 25 (2009) (plurality

op.); see also Shelby Cty., 570 U.S. at 536 (“[V]oting

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

Congress recognized in its 1982 amendments, if

Section 2 of the Fifteenth Amendment and Section 5 of

the Fourteenth Amendment authorize nothing beyond

a cause of action to bring constitutional claims, the

Constitution will remain dangerously underenforced.

Even if this Court believed that such a cramped

interpretation of enumerated congressional power

were constitutionally required, stare decisis would

counsel against applying it here and now. See, e.g.,

Tennessee, 541 U.S. at 560–64 (Scalia, J., dissenting)

(construing the Reconstruction Amendments to

22

provide broad enforcement authority to measures

designed to remedy racial discrimination, for reasons

of stare decisis); Planned Parenthood of Se. Pa. v.

Casey, 505 U.S. 833, 854–55 (1992) (listing factors to

consider).

Recent

events

have

dramatically

underscored the continuing need for robust protections

against racially targeted attempts to subvert the

franchise. There has been no demonstration that

Section 2, as presently applied, presents an

unworkable challenge for either trial courts or courts

of appeal. And as these briefs are being submitted to

this Court in a case concerning the casting and

counting of ballots, redistricting bodies are beginning

to convene and receive training with respect to their

decennial responsibility to redraw district lines —

including application of Section 2 of the Voting Rights

Act. Overhauling the settled understanding of Section

2 based on a reassessment of congressional authority,

at this point in the redistricting cycle and without

working through the ramifications for vote dilution

claims, would amount to a remarkable upending of

settled expectations.

This Case Is a Poor Vehicle to Assess

the Scope of Section 2 or the Fifteenth

Amendment

Both the district court and court of appeals’

opinions carefully applied the Voting Rights Act in a

constitutional fashion, examining not only the impact

of the challenged electoral provisions, but also the

totality of circumstances tying that impact to danger

signs of present discrimination or lingering impacts of

past discrimination. At the end of the day, there are

legitimate arguments to be made for or against a

23

finding that the challenged Arizona provisions violate

the statute; these are close questions on the facts

presented. But none of the approaches in this case

calls the constitutionality of Section 2 into question,

generally or as applied.

We believe that, while a close call, the en banc

opinion of the Ninth Circuit ultimately has the better

of the argument on the merits. But we also believe in

this instance that it is more appropriate for the Court

to dismiss its grant of certiorari as improvidently

granted than to affirm.

A.

The Primary Question with Respect to

the Ballot Collection Statute Is a Factual

Matter Limited to this Case

This case involved challenges to two provisions

of Arizona law: one relating to postal ballots, and one

relating to ballots cast in-person at polling places. The

postal ballot provision prohibits voters from asking

most third parties to assist them with depositing

marked and sealed postal ballots in the mail, at a

voting site, or at an elections office — including in

Native American communities with exceedingly

limited mail service. JA 328–29.

The primary question with respect to the postal

ballot provision turned on whether the provision was

the product of intentional discrimination, prohibited

not only by the Voting Rights Act but also directly by

the Fifteenth Amendment; in that use of Section 2,

there can be no meaningful question of congressional

authority. The courts below each engaged in a proper

examination of the available evidence, in the deeply

and appropriately fact-bound manner required by this

24

Court’s decision in Village of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252 (1977). See, e.g.,

JA 349; JA 410–11; JA 671–73.

Relative to the other decisions, the Ninth

Circuit sitting en banc placed comparatively more

weight on the entire context that led to the provision

in question. It emphasized, inter alia, that a first bill

prohibiting the collection of marked postal ballots was

motivated by seemingly pretextual concerns, targeting

predominantly Latino areas, and then withdrawn

after a request for more information in the

preclearance process, JA 602–04; a subsequent effort

in the immediate aftermath of Shelby County v. Holder

was repealed rather than face referendum, JA 605;

and — most significantly — the instant provision was

propelled in large part by pretextual concerns about

fraud and by reaction to an inflammatory racist video,

JA 605–07. Among other contextual factors, the en

banc court also noted the prevalence of racially

polarized voting, providing (as Congress recognized in

the “Senate factors”) an incentive for incumbents to

target voters based on their ethnicity as a means to

preserve partisan power. See JA 602. The court did

not, as the United States claims, Brief for the United

States as Amicus Curiae in Support of Petitioners at

34, impermissibly attribute the motives of one

legislator to specific others. Instead, viewing the

legislature’s decision as a whole — as courts interpret

the intent of any multimember decision maker,

legislative, corporate or otherwise — the court

determined that racial animus played at least a

significant part in the decision, and that the

legislature would not have come to the same decision

absent the animus. JA 679–80. This legal analysis is

25

in keeping with this Court’s precedent. See, e.g.,

Hunter v. Underwood, 471 U.S. 222, 228 (1985); Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 287 (1977).

By contrast, the district court and initial

appellate panel placed less weight on context. JA 350,

354–55; JA 418. As a result, they reached a different

conclusion about the proof of discriminatory intent. JA

356; JA 421.

Most importantly for present purposes,

however, each adjudicator applied the appropriate

legal framework, even as the en banc court found fault

with the trial court’s factual conclusions. Even if the

en banc court’s resolution of the question were

incorrect, this Court has explained that it does not

normally sit as a body of error correction. See, e.g., City

of San Francisco, 135 S. Ct. at 1780 (Scalia, J.,

concurring in part and dissenting in part) (noting that

“we are not, and for well over a century have not been

a court of error correction,” and maintaining that the

proper course was to dismiss the questions presented

as improvidently granted because “certiorari

jurisdiction exists to clarify the law”). This Court

should not expend further resources on resolving a

matter unlikely to yield substantial clarity for future

cases, which will necessarily arise out of different

contextual circumstances.

26

B.

The Primary Question with Respect to

Ballots Cast in an Incorrect Precinct Is

Not Only a Factual Matter Limited to

this Case, but Also of Limited Practical

Significance in Arizona Going Forward

The other provision at issue in this case

invalidates any ballot timely cast by an eligible voter

at a precinct other than the single location designated

for that voter — even if the precinct where the voter is

assigned changes frequently, JA 590; even if the

precinct where the voter is assigned is much farther

from the voter’s residence than the precinct where her

vote is cast, JA 592; even if the precinct where the

voter is assigned is co-located with the precinct where

her vote is cast; and even if precinct assignments for

Navajo voters in particular parts of a state are “based

upon guesswork, leading to confusion about the voter’s

correct polling place,” because those Navajo voters lack

standard street addresses, JA 593.

Here, the Ninth Circuit correctly reversed the

trial court on a threshold legal issue concerning the

import of a provision affecting only a limited

population of voters. This Court has emphasized that

the VRA protects a personal right of individuals based

on their membership in a group, as distinguished from

a group right. See, e.g., LULAC, 548 U.S. at 437 (“A

local appraisal is necessary because the right to an

undiluted vote does not belong to the minority as a

group, but rather to its individual members.”) (citation

and internal quotation marks omitted). The threshold

for liability, therefore, cannot depend on a showing

that minority voters in a jurisdiction overall face a

discriminatory abridgement of the opportunity to

27

participate in the political process, JA 334–35.

Instead, it must turn on whether, if a significant

number of voters face a potential abridgement, a

subset of those voters bear the excessive brunt of a

discriminatory practice on account of their race or

ethnicity. For example, the placement of several

polling places convenient to Anglo voters but out of the

reasonable reach of Native American voters in a

particular part of a State might, under the totality of

circumstances, still present a local Section 2 claim,

even if most Native American voters in other parts of

the state faced no such impediment. Cf. Chisom, 501

U.S. at 397 n.24 (noting that nondilution claims may

be available under Section 2 even if the number of

affected minority voters is quite small); id. at 408–09

(Scalia, J., dissenting) (same).

Past that threshold, though, there was a factual

dispute but no meaningful legal one. The en banc court

applied the appropriate legal standard under Section

2, evaluating the evidence for substantial burdens and

substantial disparity on the basis of race, and then

turning to the “Senate factors” to determine whether

the differential impediments, in the totality of

circumstances, required invalidation in order to

remedy or prophylactically deter constitutional

violations. See JA 594–96, 613–17, 622–58. In Arizona,

the en banc court found discriminatory access to

polling places. It also found proof of intentional racial

discrimination not only in voting but also education,

noting a persisting impact in education, poverty, home

ownership, and access to transportation that

contribute to the increased rate at which minority

voters cast ballots outside of their designated precinct.

JA 642–43, 647–50. The Ninth Circuit’s conclusion

28

that present policies rejecting relevant minority votes

at notably disparate rates reflected a continuing

electoral impact of past discrimination may not be the

only possible conclusion, but it is supported by the

evidence.

Most importantly for present purposes,

however, this issue concerns a practice that was

meaningful when the case was brought in 2016 based

on pre-2016 data, JA 588, but is significantly less

prominent in Arizona now based on local changes to

the way Arizonans vote.

Ballots cast in an incorrect precinct are only an

issue when ballots are cast in person on Election Day.

Arizona voters are increasingly voting early or by mail.

Even before the 2020 election, 74% of Arizona voters

voted early or by mail in 2016, and 79% did so in 2018.

U.S. Election Assistance Comm’n, 2016 Election

Administration

and

Voting

Survey,

https://

www.eac.gov/research-and-data/datasets-codebooksand-surveys; U.S. Election Assistance Comm’n, 2018

Election Administration and Voting Survey,

https://www.eac.gov/research-and-data/datasetscodebooks-and-surveys. In addition, among in-person

voters, ballots cast in an incorrect precinct are an issue

only for precincted polling places where the voter must

vote at a single designated location, rather than vote

centers where a voter may vote at any location in the

county. Arizona counties are increasingly forgoing

precincted polling places for vote centers. When the

case was brought, approximately 90% of Arizona’s

population lived in counties relying on a precinctbased system, JA 585; according to the most recent

29

available data, that number is now about 25%. 3 Given

the trends in early and mail voting, in the future less

than 25% of that 25% will likely vote on Election Day

at a precinct. So the number of Arizona voters affected

by any further ruling in this case has declined

dramatically from when the case was brought; as a

consequence, the context, the extent of any disparity,

and the continuing impact of past discrimination felt

by those voters may all have changed substantially as

well. That fact, in conjunction with the fact that the

intensely localized and fact-specific nature of the

totality of the circumstances test means that a decision

here will shed little light on the legality of other states’

treatment of ballots cast in an incorrect precinct,

makes this case an awkward vehicle at best for

resolution of any significant legal question pertaining

to the scope of Section 2.

CONCLUSION

For the foregoing reasons, the petition for

certiorari should be dismissed as improvidently

granted.

Approximately 25% of Arizonans live in counties apparently

relying exclusively on precincts as of November 2020; another 4%

live in counties adopting a hybrid model combining designated

precincts with vote-anywhere vote centers. Sam Kmack, State,

County Policies Impact Rejected Ballot Rates in November

Election, Ariz. Ctr. for Investigative Reporting, Dec. 21, 2020,

https://azcir.org/news/2020/

12/21/state-county-policies-impact-rejected-votes-novemberelection/; U.S. Census Bureau, Explore Census Data, American

Community Survey: Total Population, 2019 ACS 5-Year

Estimates tbl. B01003, https://data.census.gov/cedsci/.

3

30

DATED: January 20, 2021

Respectfully submitted,

JUSTIN LEVITT

Counsel of Record

LOYOLA LAW SCHOOL*

919 Albany St.

Los Angeles, CA 90015

(213) 736-7417

justin.levitt@lls.edu

* Institutional affiliation

for identification

purposes only

ALLISON A. DAVIS

CHRIS SWIFT

DAVIS WRIGHT TREMAINE LLP

505 Montgomery Street

Suite 505

San Francisco, CA 94111

(415) 276-6500

allisondavis@dwt.com

chrisswift@dwt.com

Counsel for Amici Curiae